ICC CHIEF PROSECUTOR FATOU BENSOUDA: ?To these Kenyans, who are prepared to come forward, and to protect the truth no matter what, and to all other witnesses who have come forward, and continue to come forward, I want to say, thank you. To others who may harbour doubts, I say be courageous and follow the examples of your brothers and sisters who are helping ICC to expose the truth.?
ICC prosecutor Fatou Bensouda's week-long visit to the country may have a significant impact on the April 2013 trials against four Kenyans charged with crimes against humanity.
The success of the visit or lack of it may as well determine the strength of the cases against deputy Prime Minister Uhuru Kenyatta, former cabinet secretary Francis Muthaura, Eldoret North MP William Ruto and journalist Joshua arap Sang.
It may as well determine if the trials will indeed take place in April as scheduled by trial judges led by Kuniko Ozaki. At the heart of it all is certain pieces of official information Bensouda is keen to lay hands on for purposes of the trial but which the government appears unwilling to give.
The greatest pointer to the significance of this information is in a letter written by Bensouda's office in September to Attorney General Githu Muigai.
The tone and spirit of the letter written by Bensouda's top envoy on cooperation Phakiso Mochochoko left no doubt that the information is extremely important.
Mochochoko accompanied Bensouda on her visit and attended all meetings held with the two principals, cabinet sub-committee on ICC, director of National Security Intelligence Service (NSIS) and the Director of Public Prosecutions among others.
“The slow pace of processing these requests is a source of frustration for the OTP. The inordinate delay in responding to these long outstanding requests hinders the ability of the OTP to access crucial information for investigation,” Mochochoko's letter preceding her visit read.
The trials are barely five months away and the prosecution has tight deadlines on disclosure of evidence and other trial-related responsibilities. By January 9, she must have completed disclosure of all evidence she will rely on at trial.
On the same day, she must file a prosecution pretrial brief referencing the evidence she has. She must also file the full list of witnesses and evidence she hopes to use at the trial on the same day. Between now and then, she has two and half months.
According to ICC accredited lawyer Evans Monari, the prosecutor's visit is irrelevant and a waste of time: “She's simply wasting time and resources. Let her bring it on with what she has,” he said.
Monari, who represented former Police Commissioner Hussein Ali at the pretrial stage says the prosecution had “suppressed the evidence it claimed to have” from both the government and suspects. He said since the prosecution adopted that approach, it cannot now try to “use Kenya to obtain weight” to an already weak case.
The lawyer's sentiments reflect the feeling at senior levels of the government. A top government official confided in the Star that the unofficial policy within the government is to let the prosecutor fret over her cases against the four Kenyans.
“They are the ones who promised the pretrial chamber that they have this and that evidence to prove this and that claim. It now turns out that they did not actually have that evidence. They should go on to produce the evidence,” the official said.
This attitude is at the centre of the delayed requests for assistance to obtain crucial official information the prosecution wants. They include among others the official recordings of the Kass FM broadcasts, hospital statistics of injuries and deaths over the post-election period, official records on displacement of persons, judicial proceedings of post-election violence cases, police and NSIS records of the violence.
Officially however, the government position is that they will cooperate with Bensouda in her investigations. Indeed the AG has transmitted all requests for assistance to the relevant government agencies although some claim not to have received them.
“Over the years and during my most recent visit to Kenya, the government of Kenya, through you and the cabinet sub-committee have expressed commitment to cooperating with the court and OTP in particular. We appreciate those expressions but they must also be reflected in full, effective and meaningful responses to these longstanding requests,” Mochochoko's letter pointing to government's double face said.
According to transitional justice expert and law scholar James Gondi, Bensouda's flurry of meetings lasting four days in Nairobi is no pointer to perceived lack of preparedness for trials or lack of enough evidence.
Gondi says the prosecution has sufficient evidence to sustain the case up a trial. He says getting more of the evidence she needs is helpful not only to bolster the existing cases but also provide a record of the larger picture in which victim concerns can be addressed.
“If she fails to get the information she wants, the case will in no way be weak. It continues to be strong. The information would only bolster what is already available to the prosecution. My understanding is that she wants to cast the net wider in order to properly articulate victims concerns.
Bensouda, an avowed victim-oriented prosecutor, has been keen to get official records on the overall effect of poll violence on victims. She is pursuing records on rape and gender violence, injuries and loss of properties especially among the vulnerable groups. She also wants to know the asset base of the four suspects for purposes of compensating victims in case convictions are obtained.
Asked why the prosecutor spared only a day for victims and more days meeting government functionaries, Gondi said this may have been informed by the fact that victims are easy to access unlike government officials. “The government officials have immense bureaucracy around them. In any case they are not willing to help the court. They appear more keen to violate both the international law and our own constitution with regard to the information they are with-holding,” Gondi said.
Ndung'u Wainaina of International Centre for Policy and Conflict (ICC) says right from the day the government used courts to block statement taking from senior police and administration officers, the OTP knew it was dealing with “a hostile state party” which projects itself as though it was cooperating.
He, however, says the OTP has significantly covered enough ground on evidence and witnesses: “Perhaps what they want is information verification. Remember this stage is about beyond reasonable doubt unlike the confirmation stage. The judges set the date after hearing all the parties,” he said.
Wainaina argued that as the one bearing burden of proof, the OTP must have considered all factors in its presentation to judges on setting of dates.
The window is not closed, however, if the OTP needs more time to tighten their evidence, Wainaina said. They can write to the judges and they will decide on its merit or demerit.
Article 86 of the Rome statute which Kenya is party to places a general obligation on Kenya to cooperate fully with the court in its investigations and prosecution of crimes within the jurisdiction of the court.
Article 87 says if state parties like Kenya fail to cooperate with the court, the court may make a finding to that effect and refer the matter to the assembly of state parties. The assembly of state parties meeting is scheduled for next month.
If matters get to that level, this will be the second time Kenya has in the recent past been reported to an international organ. Last year, International Criminal Tribunal for Rwanda (ICTR) reported Kenya to the UN Security Council over fugitive Felicien Kabuga.
The matter is still pending there. “It's a throw-back to the Moi regime when the government projected impunity in all directions. Important documents concerning victims were sat on for years and perpetrators left scot free.
Bensouda herself has refused to state the possible impact of the failure to obtain the information she needs on the trial. Asked by journalists on Monday, she said she was positive she would get all she needed and that trials would proceed as scheduled.
Other sources say the OTP has been weighing the possible impact of intermediary or secondary evidence on the strength of the cases. The ICC has a history of preferring primary evidence over secondary evidence.
Kenya's case against the four is arguably premised on the Waki Commission report and attendant evidence submitted to the OTP in bulk by mediator Kofi Annan. These are supplemented by OTP's own ground investigations which have been ongoing for years now.
Although it was state-sincere audit on the conscience of the nation on the violence, the Waki report might easily pass as secondary evidence and the prosecutor forced to match every of Waki's evidence with her own primary evidence.
Over reliance on secondary evidence has proved disastrous to the prosecution in the past. Most recently and in the Callixte Mbarushimana case, ICC judges refused to confirm the case despite the seemingly concrete evidence piled by prosecution.
In the case whose confirmation hearing took place between September 16 and 21 last year, two judges Sylvia Steiner and Cuno Tarfusser refused to confirm the five counts of crime against humanity and eight counts of war crimes against the Rwandese.
Part of the reason was because the judges placed small value in evidence contained in Human Rights Watch report, UN rapporteur on extra-judicial executions Prof Philip Alston report and a telephone call interception by UN group of experts in DRC.
The telephone call whose transcript was tabled as evidence of an official policy contained alleged military orders given by top FDLR commander Sylvestre Mudacumura was dismissed as “at best indirect evidence” which “on its own is not enough to contradict” direct evidence given by insider witnesses.
In the Kenyan cases, the UN monitoring group on Somalia is alleged to have tracked the transportation of cargo-loads of weapons from Somalia which was allegedly distributed among the Mungiki over the post election period.
Alston's report on Congo DRC dated June 1, 2010, according to the judges, contained more specific statements as to the FDLR's alleged policy to attack civilians. The judges equally dismissed it: “At best, this report stresses that the FDLR campaign was directed towards the intimidation of and exaction of revenge on those civilians accused of supporting the Government of the DRC or of cooperating with the FARDC.”
It is not known how the trial judges will treat the evidence gathered from Waki which is possibly why the prosecutor is pulling all stops to obtain official government versions of the same.
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