Releasing unproven ‘evidence’ against President was an abuse of discretion

Prosecutor Fatou Bensouda arrives for the appearance of President Uhuru Kenyatta at the International Criminal Court (ICC) in The Hague, on October 8, 2014. PHOTO | PETER DE JONG |  AFP

In Summary

• The release of the pre-trial brief in the case, though not illegal under the Rome statute is disallowed in many jurisdictions.
• This abuse of discretion represents the main problem bedevilling the ICC.

By REGINA NJOGU
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The recent release of the 73-page ICC prosecution’s “evidence”’ against President Kenyatta in the botched ICC case was received with.........................................
glee by some and consternation by others.

While the dossier is good fodder for Mr Kenyatta’s detractors, many legal observers found it troubling; it was a departure from tradition in criminal trials.

As a legal practitioner, I consider the release unfairly prejudicial to the President. From a legal standpoint, these were simply unproven allegations that had not been tested for veracity.

The so-called evidence had not gone through a rigorous court process in the form of a trial.

Such a process involves calling witnesses that gave the information and subjecting them to qualification for credibility, cross examination and application of rules of evidence.

Just because a person accuses another of having committed an offence does not make it true.

At the end of trial, all, most, or part of the evidence may either pass muster or be considered unreliable and untrue and therefore stricken off the record.

Alternatively, a prosecutor may conclude that he does not have enough evidence to proceed or has some evidence but is unable to prove it.

In such a case, the prosecutor declares a nolle prosequi which means that the case is a still birth.

The latter scenario is what happened in Mr Kenyatta’s case. In such a case, the case ends there.

The declaration of nolle prosequi by a prosecutor is not an indictment on an accused person. If anything, it is an admission by the prosecutor that the case does not meet the threshold of securing a conviction, and the accused is therefore considered innocent.

IRRESPONSIBLE

A prosecutor possessing insufficient, unverifiable or unreliable evidence preventing proceeding cannot then turn around and present the same evidence to the public to illustrate that the accused committed the offence(s) alleged in the charge sheet.

Ms Fatou Bensouda could not proceed with the trial because she could not prove the case against Mr Kenyatta. If she could, she would not have dropped the case.

So, for the court to order the release of the same “evidence” to a divided and mostly unsophisticated public is to stoke despondence; it’s irresponsible use of the ICC’s discretion and subjects Mr Kenyatta to a trial in the court of public opinion.

To be sure, many are already taking the unproven “evidence” in the dossier as gospel truth and peddling it all over under absolute titles like “Uhuru gave cash to arm Mungiki”.

Moreover, those who do not understand the exact nature of the trial may assume that the dossier is a compilation of facts.

As a bare minimum, the court should have stipulated that Ms Bensouda include a caveat with the release of the dossier stating that the “evidence” she was releasing contains unproven allegations.

And even then, it is still not acceptable to release such unproven yet inflammatory information to the public.

FLAWS IN THE ROME STATUTE

The release of the pre-trial brief in the case, though not illegal under the Rome statute is disallowed in many jurisdictions that value the right of an accused to be presumed innocent until proven guilty.

This abuse of discretion represents the main problem bedevilling the ICC, namely the Rome Statute’s conferment of unchecked powers and discretion to the court and the prosecutor.

Many countries that have refused to join or that have quit the ICC have cited the main reason as the flaws in the Rome Statute.

It does not help that the Statute has created an absurdly powerful office of the prosecutor that acts as the face of the court and the chief protagonist.

In many jurisdictions, including Kenya, the judge is the face of the court as the neutral arbiter. The name of the prosecutor is hardly known, nor prominently featured.

The US, China, Israel, India, Indonesia and many other countries have refused to join the ICC because of the improper structure giving the prosecutor too much power.

In refusing to join the ICC, the US concluded that the Rome Statute “is fatally flawed” and neither signed nor ratified it in its present form.

The decision to permit the release of unproven evidence against an accused person to the public hastens the court’s doomed political future.

Ms Njogu is an attorney and counsellor at law in the US. (njogu@rnwlawfirm.com)