Kenyan President's Lawyers Want ICC Case Terminated

Lawyers representing the Kenyan president at the International Criminal Court (ICC) have asked judges to turn down the prosecution’s request for a further adjournment, and instead to terminate proceedings against their client.

The request follows a legal submission by ICC prosecutor Fatou Bensouda on September 5 in which she informed judges that she still lacked sufficient evidence to bring Uhuru Kenyatta to trial, and asked for the scheduled start date to be postponed indefinitely.

Kenyatta is charged at the ICC with five counts of crimes against humanity for allegedly orchestrating widespread bloodshed following a disputed presidential election in 2007.

In a separate case, Kenyatta’s deputy William Ruto and former radio journalist Joshua Arap Sang are already on trial on similar charges. The 2007-08 unrest claimed 1,100 lives and forced some 650,000 people from their homes.

Proceedings against Kenyatta were due to get under way on October 7, but Bensouda had said she was still waiting for the Kenyan government to hand over material that could provide evidence for her case. See ICC Prosecutor Wants More Time to Get Kenyatta Evidence.

In March and again in July, ICC judges asked the Kenyan government to comply with the prosecutor’s request for Kenyatta’s financial accounts, mobile phone records, registers of land holdings and other documents. The prosecutor has accused the Kenyan authorities of failing to cooperate with her investigation.

In a submission to the judges this week, Kenyatta’s lawyers Steven Kay and Gillian Higgins said any further delay would compromise their client’s right to a fair trial.

The judges first agreed to adjourn the case after the prosecution admitted in December 2013 that it did not have enough evidence.

Kay and Higgins repeated arguments they have made previously that the evidence against Kenyatta had been shown to be false and that by the prosecution’s own admission, there was very little chance of evidence coming to light that would merit putting him on trial.

The defence team dismissed Bensouda’s efforts to blame her office’s shortage of evidence on the Kenyan authorities. They said it was “disingenuous” of the prosecution to claim it had encountered insurmountable obstacles in its investigation.

“Mr Kenyatta’s fundamental fair trial rights have been subordinated in the process of the prosecution seeking to divert blame to the government of Kenya for the failure of its case,” Kenyatta’s legal team said in a written submission on September 10. “By proclaiming insufficiency of evidence… yet seeking to prolong the proceedings indefinitely, the prosecution has placed the accused in a position not countenanced by the [ICC’s] statute, nor by any true conception of justice.”

The lawyers also took issue with the prosecution’s earlier submission that as head of state, Kenyatta is himself responsible for any failure by the government to comply with requests for evidence. They said this argument was “flawed and without merit”.

“The practical and legal difficulties for the government of Kenya in executing the prosecution requests are matters for which the accused is not responsible. All these matters are founded upon issues of Kenyan law,” the defence lawyers wrote. “The prosecution’s refusal to comply with Kenyan legal procedure has frustrated this process.”

Under ICC procedures, if judges make a ruling that a national government party to the court’s Rome Statute has failed to cooperate with an investigation, they can refer the matter to the 122 states that fund the court, know collectively as the Assembly of States Parties.

The prosecution has stated that it intends to pursue this avenue if necessary, but Kenyatta’s lawyers said it would be unlikely to succeed.

“The Assembly of States Parties would be no less than astonished by the conduct of the prosecution in this case, the shoddiness of its investigations, its insistence on presenting a case based upon false and fabricated evidence and its untenable position of seeking an adjournment,” Kay and Higgins wrote in their submission.

In addition to arguments relating to the prosecution’s request for a further adjournment, Kenyatta’s lawyers also re-emphasised their view that the prosecution had not adequately investigated either the case or some of the problems surrounding its witnesses.

The case has been plagued by allegations of witness interference, and some of the individuals who were due to testify have said they lied in statements they gave prosecutors. Others have recanted their statements.

Addressing one instance of alleged interference, Kenyatta’s lawyers submitted that the prosecution had not followed up the matter or interviewed any of those concerned. They said this showed that the prosecution had “wilfully ignored” such conduct.

Meanwhile, in the trial of Ruto and Sang, judges ruled earlier this week that an individual they had ordered to give evidence should be treated as a hostile witness.

The protected prosecution witness, referred to as P604, continued to give testimony via video link from Nairobi.

Last week, he contradicted much of the testimony that he had given in his earlier statement to prosecutors in 2013. 

The witness told the court that evidence which implicated the defendants had in fact been fabricated.

The judges’ ruling allowed prosecutors to cross-examine their witness on the question of why he changed his testimony.

They said they would not seek to bring any charges against him, but would use their questioning to throw light on the circumstances in which he altered his testimony.

Asked by prosecution lawyer Anton Steynberg whether he was fearful of the consequences of implicating Ruto and Sang, the witness said he was not.

“One, I don’t have any evidence against the two,” he said. “Two, I don’t fear anything but I don’t think I have anything that can implicate the two on the post-election violence.”

Much of the questioning was held in closed session. However, in parts that took place in open session, it transpired that the prosecution had asked the witness whether he had been bribed.

The witness did not answer that question in open session. Ruto’s legal team objected to the question on the grounds that the prosecution had not offered evidence of bribery, such as bank records or money transfers.

Under cross-examination by one of Ruto’s lawyers, Essa Faal, the witness confirmed that he had entered all events relating to the post-election violence in two separate diaries. He confirmed they had been written at the same time, with the same pen and in identical handwriting.

Faal took the witness through a series of events that took place in the run-up to the 2007 election. He compared the dates of events like election primaries, as reported in various Kenyan newspapers, with the dates that the witness recorded in his diaries.

The witness acknowledged that the dates in his diary were wrong, and also contradicted his earlier statement to investigators in which he said he had written the entries on the day the events occurred. He now told the court that he filled out the diaries after he met an ICC investigator in 2013.

He also said he had entered false details in his diary in order to ensure it tallied with the information he had given to ICC investigators.

This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.