Don’t gamble with the rights of a suspect

The International Criminal Court (ICC) buildings at The Hague, Netherlands. That dividing line neatly marks the combatants in Kenya’s ICC debates. Some would prefer the cases to go on, though it is clear the methods by which the evidence was acquired are unreliable, as is the evidence itself. They hope to get lucky. PHOTO/ BILLY MUTAI  NATION MEDIA GROUP

In Summary

• Tossing a coin, they will say, means relying on information that, even if correct, could very easily have been wrong. And it is a bad idea to make decisions on information which could easily have been wrong.
• As the judge noted, three different explanations were offered by the prosecution for the failure, and the fact of the matter was that the episode – Witness 4’s giving inconsistent statements about a key matter, and the prosecution either not finding out, or not informing the court in time – showed that the prosecution’s handling of the evidence was negligent.
• Those who argue that the evidence is too unreliable to go forward have the facts, not to mention the prosecutor, in their favour. This is a strong point.

By DANN WAWERU
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Suppose you’re trying to answer a multiple-choice exam question with exactly two options, A and B.

You’re not sure which is right, so you toss a coin: heads, you choose A, tails B. The coin lands heads. By good luck, A is the correct answer. But what if anything had gone wrong?

Some will say that nothing has: although you relied on a terribly unreliable method to get your answer, it was correct. Others will say that something has gone seriously wrong: you had no business relying on such a seriously unreliable method. You should have done your homework and not relied on luck.

Tossing a coin, they will say, means relying on information that, even if correct, could very easily have been wrong. And it is a bad idea to make decisions on information which could easily have been wrong.

That dividing line neatly marks the combatants in Kenya’s ICC debates. Some would prefer the cases to go on, though it is clear the methods by which the evidence was acquired are unreliable, as is the evidence itself. They hope to get lucky.

The other side argues that there is insufficient evidence of the right quality. Consequently, even if the evidence actually favoured a conviction, that conviction would be unsafe, because it was based on evidence that was unsafe.

We can no longer seriously deny that the prosecution’s evidence was both weak and unreliably acquired, and that this is part of a pattern.

Return to the Witness 4 saga. He gave differing, inconsistent statements about a central event in the prosecution’s case.

The prosecution did not disclose them to the court or defence in good time.
Judge Christine van den Wyngaert, found that the prosecutor could not explain why she had failed to take proper notice of material inconsistencies in the witness’s statements.

RIGHTS OF THE ACCUSED
As the judge noted, three different explanations were offered by the prosecution for the failure, and the fact of the matter was that the episode – Witness 4’s giving inconsistent statements about a key matter, and the prosecution either not finding out, or not informing the court in time – showed that the prosecution’s handling of the evidence was negligent.

On this basis, she found that the prosecution had failed to properly investigate its case, and that its failure was a violation of the prosecution’s duty to respect the rights of the accused.

More recently, a very similar problem has arisen: a witness who had given a statement saying one thing has recently said something inconsistent.

What we have is not simply a one-off failure by the prosecution to manage its evidence well; rather, it is a pattern of negligence in the handling of evidence, and a pattern against which the prosecution has already been warned.

Those who argue that the evidence is too unreliable to go forward have the facts, not to mention the prosecutor, in their favour. This is a strong point.

Those who support the ICC’s judicial process in the hope of relieving the pain of the victims of the post-election violence may feel that it is better to take their chances with a flawed judicial process. That judgment is mistaken: in relying on a provably unreliable prosecutorial mechanism, they are running unnecessary risks on the victims’ account.

But though the prosecutor’s case has been found severely wanting, one should acknowledge her courage in admitting that it is.

The long-term future of international justice requires that it be impartial. The prosecutor’s admission that she lacks the evidence to take President Uhuru Kenyatta’s case further is a powerful indicator that she is willing to assess matters with the requisite impartiality.