Sunday, September 15, 2013


From what we saw at the International Criminal Court at the Hague this past week, it's quite clear Fatou Bensouda has a herculean task ahead of her in prosecuting the Kenyans accused of crimes against humanity. The Deputy President, William Ruto is accused of orchestrating the 2007 post-election violence while his co-accused, former radio broadcaster, Joshua Sang, has to answer allegations that he used broadcasts to fan violence against certain tribes in the Rift Valley.

While the defence led by Karim Khan for Ruto and Katwa Kigen for Sang came out smelling like roses on the first day of the trial on September 10, the prosecution team was left splashed with rotten eggs all over its face after it forced the adjournment of the case prematurely for lack of witnesses. Even the Bench, president over by Judge Chile Eboe-Osuji, appeared disappointed by the unpreparedness of the prosecution.

The case which was filed by the former ICC prosecutor Luis Moreno Ocampo before he retired in 2012, has had a very bumpy ride since the charges were confirmed in 2011. From the original six who were initially indicted, it is only the two now appearing in court, and Kenya's President Uhuru Kenyatta whose trial begins in a few weeks, who remain to face charges. The pre-trial release of former head of civil service, Francis Muthaura and former minister Henry Kosgei for lack of evidence signalled the beginning of troubles for the prosecution. Then followed the pull-out of at least two judges; numerous unexplained postponements; legal arguments over witness testimonies; and finally allegations of witness tampering.

For the moment, Bensouda needs to concentrate on how she can turn the shortcomings of last week into an opportunity this week to make a formidable case before the court. She must be able to pick herself up and make an impression by presenting a strong case through the first set of witnesses. The first testimonies must have the capacity to disorient the defence and get the attention of the judges. If she fails to do that, the cases may be as dead as a dodo.

Already both defence lawyers have called for the acquittal of their clients claiming the cases lacked merit. With at least a half a point ahead of the prosecution, the defence is coming into court this week more invigorated, more confident and ready to charge at the prosecution.

While some witnesses reportedly arrived at the Hague these past few days ready for the start of proceedings on Tuesday, other reports said more witnesses had withdrawn from the case. And that brings me to my next point. It is emerging now that more people may have been involved in matters surrounding the Hague cases than originally thought. Names and faces are now cropping up in the public domain to suggest that the whole saga of witnesses could have been exploited by certain non-governmental organisations and individuals. That the ICC cases were heavily infiltrated by human rights activists and political opportunists is not a secret.

The matter becomes even more intriguing when I hear some of those NGOs may have had more than local connections. If this is true, then those elements who covertly interfered with the witnesses must face the full force of the law. Similarly, if there is anyone who gave false information - either for or against the accused persons - to the ICC investigators must be investigated and if found culpable, prosecuted.

The charges facing Uhuru, Ruto and Sang are extremely serious and could, if confirmed, lead to long prison sentences. We already know about the 50-year jail term given to the former Liberian President Charles Taylor. We also know about the conviction, not too long ago, of Thomas Lubanga, leader of the Union of Congolese Patriots, who was sentenced to 14 years by the ICC court for a myriad charges connected to atrocities in his home country, the DRC. Consequently, any kind of interference in an attempt to subvert justice must not be tolerated.

This case is about the thousands of people who were murdered, raped, tortured and rendered homeless as a result of the heinous events of 2007. These people are crying for justice: justice of not only getting their farms back - or be compensated as the case may be - but justice that would ensure those who committed acts of violence are punished according to the law; and that never again will Kenya be subjected to such despicable acts of civil chaos.

And that is my say.