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The ICC case against President Uhuru Kenyatta was on the verge of collapse Wednesday after the judges gave the prosecutor seven days to withdraw it if she does not have the evidence to go to trial.

 On October 8, Prosecutor Fatou Bensouda had told the court that nothing had changed from what she had reported in December 2013: That she did not have sufficient evidence to prove that Mr Kenyatta was guilty of crimes against humanity.

She was not sure either if whatever new evidence she would obtain, principally from government and Mr Kenyatta’s records, would be enough to convict.

Unless Ms Bensouda has found new witnesses — and it is not known if she has — or comes upon records or other evidence that would bolster her case, then in a week she must go to court and request the judges to withdraw the case. If she does not, the judges will likely step in and do so themselves.

But Judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson left the door open for Ms Bensouda, should she withdraw the current case, to charge Mr Kenyatta afresh with the same offences if she got the evidence at some point in the future.

They, however, refused to grant her request to adjourn the case indefinitely – until the government provides all the records she had asked for – even though they recognised that not granting the adjournment “is likely to have the consequence of ending the proceedings”.

NEW TRIAL DATE

They also did not set a new trial date, as they ordinarily would after refusing to postpone a case, because they believed it would be “contrary to the interest of justice” for the prosecutor to continue with a case in which she has confessed not to have enough evidence to conclusively prove guilt.

The judges said that even though they had not looked at the evidence and were relying on Ms Bensouda’s own admission that it was not enough, “the Chamber is of the view that the appropriate course of action would now be the prompt withdrawal of charges”.

But they threw out Mr Kenyatta’s request to terminate the case, saying it was not the right time to intervene. In any case, they added, “the prosecution has indicated that it would be required to withdraw charges” if the postponement it has asked for was denied.

The issue of double jeopardy, the legal principle which bars one from being tried twice on the same offence, will not arise because the trial has not started and Mr Kenyatta could face the same court in future on the same charges.

However, the judges appear to think that the chances of finding evidence to convict Mr Kenyatta are slim and, therefore, the proceedings should not be prolonged.

“It is apparent that the prosecution does not have any concrete prospect of obtaining evidence sufficient to meet the standard required for trial and to sustain the current charges.

‘‘In the Chamber’s view, such circumstances should now weigh compellingly in favour of not further prolonging these proceedings,” they said.

The court observed that even though the victims of post-election violence had every right to expect those criminals who committed crimes against them punished, given that the accused is presumed to be innocent, it is not in the interests of justice or of the victims “for the current proceedings to be continued on the speculative basis which has been presented”.

The judges said both the prosecutor and the government of Kenya had delayed the proceedings at some point, but pointed out that if the prosecutor really thought the information she now wanted from the government was so crucial to her case, she should have asked for it earlier.

Ms Bensouda was also criticised for failing to establish the credibility and reliability of her evidence earlier on and that the “timeliness and thoroughness of investigations” left a lot to be desired.

As to the prosecution’s key argument that the reason its case was shaky was because Mr Kenyatta, a powerful person in the government, was obstructing the collection of evidence, the court ruled that the prosecution had presented no evidence of that.

In any case, if that were the case, the prosecution would still be free to charge Mr Kenyatta with that particular offence.

The ball is now in Ms Bensouda’s court “to file a notice, within one week of this decision, indicating either its withdrawal of the charges in this case or that the evidentiary basis has improved to a degree which would justify proceeding to a trial”.

The judges observed that cases against President Kenyatta and his deputy, Mr William Ruto, and former broadcast journalist Joshua arap Sang, have taken five years at The Hague with the prosecutor struggling for the last three years to gather adequate evidence to start the trial of the former.

They argued that Ms Bensouda had failed to prove the credibility and reliability of her evidence after the Pre-Trial Chamber committed President Kenyatta to trial in December 2011.

RIGHTS OF MR KENYATTA

In such a case, they were in agreement that the rights of Mr Kenyatta as the accused had come into play, prompting them to turn their focus to the prosecutor.

“Although the fact that the accused is not in detention is a relevant mitigating factor, it cannot be determinative in considering whether or not an accused’s right to be tried without undue delay may be compromised,” they said.

They absolved the President from the prosecution’s accusations that he was responsible for the alleged failure by the government to provide access to the evidence which the prosecution has been seeking.

“The Chamber notes that no substantiation for such an allegation has been provided. Indeed, the prosecution has conceded that it has no evidence to support such an allegation,” they ruled.

The ICC judges also rejected Ms Bensouda’s application to declare Kenya a non-cooperative state party and report it to the Assembly of State Parties which will meet next week in New York.

The ruling, which is based on the Status Conference held on October 7 and 8 and attended in person by President Kenyatta, digs into the history of arguments and counter-arguments by the defence lawyers Steve Kay and Gillian Higgins and those in Ms Bensouda’s team.

While the prosecution wanted the case adjourned as the government was being ordered to provide evidence, the defence team urged the judges to terminate the case on grounds that there was insufficient evidence to proceed with the case.

But yesterday, the judges said they could not terminate the charges outrightly because it would block the prosecution from opening the case against Mr Kenyatta afresh.

Credit: Daily Nation