International Criminal Court critique haunts Uhuru

Kenyan President Uhuru Kenyatta turns to speak to a member of his delegation at Lancaster House in London. The International Criminal Court on June 20, 2013 postponed until November 12 Kenyan President Uhuru Kenyatta's crimes against humanity trial in connection with deadly post-election violence. For the President to skip his trial at The Hague would be a grave mistake.AFP/PHOTO  

In Summary

• President had the accused Court of race-hunting
• Chamber chides prosecution for laxity in conducting investigations

By Walter Menya
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Judges cited President Uhuru Kenyatta’s severe criticism of the International Criminal Court at an African Union meeting last year as one reason for declining to terminate charges against him.

The President’s lawyers had asked the court to terminate the charges for lack of evidence, a request the prosecution rejected as it sought more time to conclude investigations.

In the ruling made available March 31, the judges at the Hague-based court threw the prosecution a lifeline when they directed the Government of Kenya to make available the President’s bank details and financial records ahead of the scheduled opening of the trial on October 7.

President Kenyatta, Deputy President William Ruto and journalist Joshua arap Sang are facing charges related to the 2007/2008 post-election election violence.

Making their decision, the judges said Mr Kenyatta’s conduct and influence could hinder the prosecution’s investigations and used his October 12 speech to the AU Extraordinary Session in Addis Ababa, Ethiopia last year as an example.

“In that regard, the Chamber notes certain conduct on the part of the accused, in his capacity as President, which has the potential to contribute to an atmosphere adverse to the Prosecution’s investigation on the ground, as well as to foster hostility towards victims and witnesses who are cooperating with the court,” the judges said.

In his hard-hitting speech before fellow AU heads of state and government, President Kenyatta accused the ICC of “race-hunting” by targeting only African suspects.

“The ICC has become a farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of declining imperial powers,” Mr Kenyatta said as he rallied the continent’s leaders to be wary of “persistent machinations by the West”.

The President further acknowledged that while it was important to have an international forum for justice and accountability, the ICC had showed bias, disrespect and disregard for Africa’s views.

It is these utterances that the three ICC judges — Kuniko Ozaki (presiding judge), Robert Fremr and Geoffrey Henderson — found intimidating to the ICC investigators, victims and witnesses. As a result, they said President Kenyatta’s remarks informed a key reason for a postponement rather than termination of the case.

But the prosecution was not spared, either. The three judges raised “serious concerns regarding the office’s timeliness and thoroughness” in the investigations.

The prosecution, the chamber said, has an obligation under Article 54(l)(a) of the Rome Statute to verify the credibility and reliability of the evidence.

“The Prosecution was, from an early stage of the proceedings, on notice regarding potentially serious challenges to the credibility of certain of its key witnesses. This should have been sufficient to prompt a thorough review of the evidence in the case and, in particular, the consistency and reliability of witness statements,” said the judges.

The judges reminded the prosecution that it was their primary obligation to produce a case ready for trial.