Victims Legal Representative Fergal Gaynor said that the International Criminal Court (ICC) Prosecution has not done enough to compel the Government of Kenya to submit evidentiary material that it requires and that although he supports the prosecution’s plea for adjournment/FILE
Victims Legal Representative Fergal Gaynor said that the International Criminal Court (ICC) Prosecution has not done enough to compel the Government of Kenya to submit evidentiary material that it requires and that although he supports the prosecution’s plea for adjournment, Trial Chamber V (b) should ask the prosecution to furnish the court with proper evidence to prove Kenya’s non-cooperation.
“The victims support the request for the adjournment but are concerned that the prosecution has not done enough to hold the Government of Kenya accountable for its failure to permit the Prosecution to access relevant evidence in Kenya,” Gaynor indicated.
He said the chamber should ask ICC Prosecutor Fatou Bensouda to show documents, phone recordings and email communications to demonstrate her position that Kenya has failed to allow her office to access evidence.
“The lawyer suggests that the Trial Chamber put to the prosecution detailed questions – contained in an annex to the filing – concerning the nature and extent of the Government’s efforts to facilitate prosecution access to relevant witnesses, documents, intercepted telephone calls and emails, cell phone data and cell site data,” he suggested.
He said with such information the judges will be in a position to, “decide what action to take in respect of State obstruction of access to relevant evidence”.
However Gaynor said the judges should not reject charges against Kenyatta as it will be a big blow to the 20,000 victims he is representing.
According to Gaynor, whereas the prosecutor has alleged that there has been interference of witnesses, she has not taken the steps outlined in the Rome Statute to deal with any attempts to obstruct justice.
On December 19, Bensouda said she did not have strong evidence against Kenyatta and requested the court to vacate the February 5 date set for the Kenyatta trial to allow her more time to gather evidence.
Legal experts and analysts saw it as a big blow and an early sign of the possibility of charges against Kenyatta being dropped.
The ICC has so far dropped charges against former Head of Civil Service Francis Muthaura, former Police Commissioner Hussein Ali and former Industrialisation Minister Henry Kosgey.
It confirmed charges against Kenyatta, Deputy President William Ruto and former journalist Joshua arap Sang.
Ruto and Sang are already facing trial in a case in which they are accused of committing crimes against humanity during the 2008 post-election violence in Kenya.
The court is yet to make a decision on the fate of the trial against President Kenyatta who is accused of “jointly carrying out a common plan” that led to deaths of people in Nakuru and Naivasha during the violence after the 2007 disputed presidential results.
Whereas his defence has raised eyebrows over how Kenyatta could have carried out a “joint common plan” on his own, Bensouda has insisted that she needs more time to gather more evidence even after three key witnesses withdrew from her list.
Kenyatta’s defence team is yet to respond to the application.
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