Bensouda: No evidence to sustain Uhuru case

BY FATOU BENSOUDA



Today, I filed an application with the judges requesting an adjournment of the provisional trial date in the case of the Prosecutor v. Uhuru Muigai Kenyatta (ICC-01/09-02/11).


My decision is based solely on the specific facts of this case devoid of extraneous considerations.


As Prosecutor, I have consistently stated my actions and decisions are at all times strictly guided by the evidence in accordance with the Rome Statute legal framework. This recent decision is no different.
It is my professional duty to react, and to take the necessary decisions when the state of the evidence changes, as it has in this case.


In the last two months, one of the Prosecution’s key witnesses in the case against Mr Kenyatta has indicated that he is no longer willing to testify.


More recently, on 4 December 2013, a key second witness in the case confessed to giving false evidence regarding a critical event in the Prosecution’s case.


This witness has now been withdrawn from the Prosecution witness list. Having carefully considered my evidence and the impact of the two withdrawals, I have come to the conclusion that currently the case against Mr Kenyatta does not satisfy the high evidentiary standards required at trial.


I therefore need time to complete efforts to obtain additional evidence, and to consider whether such evidence will enable my office to fully meet the evidentiary threshold required at trial.


Our pursuit of justice for the victims of the 2007-2008 post-election violence in Kenya has faced many challenges.
Notwithstanding, my commitment and that of my staff to the pursuit of justice without fear or favour has remained firm.


It is precisely because of our dedication and sense of responsibility to the victims in this case that I have asked the Judges presiding over the case for more time to undertake all remaining steps possible to strengthen the case to ensure justice for the victims.


To the people of Kenya, my decision to apply for an adjournment today was not taken lightly and I have explained fully to the Judges the reasons for my exceptional decision.


I have and will continue to do all that I can to realise justice for the victims of the 2007-2008 post-election violence.

Source: Capital Blog » Bensouda: No evidence to sustain Uhuru case

I predicted this sh.. like Tupacalypse.

Of course no evidence, for starters, all the witnesses are intimidated, killed or bought.

Yes Kiranga, there's a serious problem here. The prosecution team is failing us. Madam Bensouda had to see this beforehand, back to April when madam Justice Christine Van Den Wyngaert raised her concerns about the evidence. The prosecution team had to be more precautious and smarter than what we see now.

Let's recount what happened in court back in April.

ICC Prosecution of Kenyatta Takes a Hit

(Photo: Thomas Mukoya / Reuters)



The Kenya cases were never going to be easy for the International Criminal Court (ICC) and the going only got tougher following the election of Uhuru Kenyatta and William Ruto, both of whom have been indicted by the ICC for their alleged roles in the 2008/09 post-election violence in Kenya.
The Prosecution has faced numerous obstacles in seeking to properly investigate and prosecute crimes pertaining to the post-election violence. Evidence has been withheld, witnesses have been intimidated, and Kenyatta and Ruto were elected to the positions of President and Vice President, respectively. Throughout the process, it seemed fair and feasible to assume that the biggest challenges to the prosecution of Kenyatta and Ruto would come from political developments within Kenya that were outside of the control of the ICC, and not from within the Court itself.
It thus came as a surprise (at least to those of us outside the inner-workings of the Court) when a presiding Judge in the Kenya case ripped into the Prosecution last week. Judges in the Pre-Trial Chambers rebuked the Prosecution for withholding evidence from the Defence. However, as Thomas Escritt puts it, Justice Christine van den Wyngaert “went further in her criticism of the prosecutors.” Did she ever.
It is worth reading van den Wyngaert’s entire opinion but here are some of the most stinging comments: Christine Van Den Wyngaert (Photo: ICC)



In addition to her stinging rebuke, van den Wyngaert removed herself from the case altogether. She has explained that her decision is a result of her caseload although some, like Kevin Jon Heller, are skeptical of her justification.
So how should we understand these developments?


With every development in the Kenya cases, and perhaps for all cases at the ICC, there are (at least) two types of implications for the Court: legal implications for the case and perception implications for the Court.


Legal Implications
It is clear that van den Wyngaert’s opinion and her resignation as a judge in the Kenyatta case will have implications for the trial as it proceeds. What isn’t clear is precisely what those implications will be.


Ironically, van den Wyngaert resignation may ultimately benefit prosecution. As Heller astutely observes, “Judge van den Wyngaert’s withdrawal may well replace a judge who is skeptical of the prosecution’s case with one more inclined to accept it.” As a result, Heller claims that Kenyatta’s defence would be wise to appeal van den Wyngaert’s request to be removed from the case. If the defence takes Heller’s advice, it will be interesting to see if the Prosecution responds by claiming that van den Wyngaert’s commentary and her request to be removed from the case would ultimately bias her judgement in trial.


The Chambers’ condemnation of the Prosecution’s withholding of evidence to the defence is particularly troubling. Similar allegations plagued the Prosecution during the trial of Thomas Dyilo Lubanga. In fact, the Lubanga trial was almost thrown out of Court on two different occasions because the Prosecution was seen as having violated his right to a fair trial. At the time, many stated – and hoped – that this simply reflected growing pains for a young office and wasn’t representative of any pattern or policy. Another ruling stating that the Prosecution withheld exculpatory evidence from the Defence is troubling indeed, even if the ruling did not find that it was done intentionally.


The silver lining for the Prosecution is that, despite their rebuke, the trial will move ahead and not be returned to the confirmation stage, something that Kenyatta’s defence team had sought. This will certainly come as a huge relief to the Prosecution, especially after having to withdraw charges against Francis Muthaura. A ruling to restart the trial would have been a massive setback for the Office of the Prosecutor.


Kenyatta at the ICC (Photo: ICC)



The Perception Game
In comparison to the Kenyatta, Ruto, and their supporters, the ICC has virtually no resources to counter messaging against the Court’s work – and in support of Kenyatta and Ruto – in Kenya. And it certainly doesn’t help that Kenyatta and Ruto now have control of state means to communicate with Kenyans.


As a result, the Court is losing the perception game in Kenya – if it hasn’t lost it already. It is worth stressing that this has less to do with the Court’s decision-making than with its lack of resources as well as the insufficient political support behind it in key cases.


But it certainly doesn’t help when the Prosecution is ripped into by ICC judges. It only adds more fuel for those who seek to lambast and undermine the standing of the Court at any cost. It was thus unsurprising that some local media attributed van den Wyngaert’s decision to remove herself from the trial not to her stated reason (ie. her workload) but to her criticism of the Prosecution. This spin fits not into reality but into the perception game being played by Ruto and Kenyatta’s network of supporters.


Good Law Can Better Perceptions
There isn’t much the Prosecution can do about the perception game. It simply doesn’t have the clout or resources to counter the wave of support or the communications machine in favour of Kenyatta and Ruto. The Court can’t control who wins elections and, without a dramatic surge in political support and funding for its work, it can’t control whether evidence is withheld or witnesses are intimidated.
However, one thing the Prosecution can do is avoid repeating past mistakes which only invite new forms of criticism and media spin. Every mistake is an opportunity to learn. And while a coherent, water-tight and gaffe-free prosecution of Kenyatta and Ruto won’t win the perception game for the ICC, it certainly won’t hurt.


Source: ICC Prosecution of Kenyatta Takes a Hit | Justice in Conflict

My hunch is that Uhuru and Ruto are complicit in the crimes they are charged with.

But the level of witness tampering that we've seen thus far is just incredible. So many of the prosecution witnesses have withdrawn from the case. I believe there are some (dark) forces behind those withdrawals.

Uhuruto, with help from some of their African counterparts have pulled out all the stops to sabotage their trials - from the AU declaration(s), the UN efforts to push back the trial date, to Uhuru assuming the EAC chairmanship from Museveni, all in an attempt to shield themselves against the ICC charges.

And by the looks of it they appear to be succeeding. The case is collapsing like a house of cards and I'd be shocked if Uhuru will ever see his day in court.

I feel for the victims who lost their lives, property, and who became permanently disabled as a result of the violence. The whole thing has turned out to be more about the innocence of the miscreants and their confederates as opposed to being about justice for the victims.

Too sad and too bad.

Nyani Ngabu said:

But the level of witness tampering that we've seen thus far is just incredible. So many of the prosecution witnesses have withdrawn from the case. I believe there are some (dark) forces behind those withdrawals.

Click to expand...

Certainly Nyani Ngabu

Too sad and too bad. But I always wonder, all the witnesses' names had been sealed and personally taken to safe houses/places, how did these perpetrators get access to them?

If you closely follow Walter Barasa's saga(Walter Barasa Responds to ICC Warrant of Arrest against Him, Accuses ICC Investigators of Intimidation | Mwakilishi.com) you can see some negligible mistakes(it might have been a calculated move too) done by the prosecution team, how did they recruit such a useless person? Was the vetting right?

Should I say more? less? There's an inside job here.

Ivonya-Ngia said:

Certainly Nyani Ngabu

Too sad and too bad. But I always wonder, all the witnesses' names had been sealed and personally taken to safe houses/places, how did these perpetrators get access to them?

Click to expand...

I don't know how anybody got access to the list of names of witnesses and whatnot but what I know is, there is no such thing as a secret that involves more than one person.

So no matter if they were sealed or not, there are people who were involved in the process of identifying, selecting, debriefing, and what have you, of those witnesses.

I'm worried that if she (the prosecutor) doesn't drop the charges completely she'll end up having no witnesses in the end because they will all have pulled out by the time the trial gets underway.

Plus it's very hard to get on the witness stand and testify against the sitting president and his deputy-president of your own country, and it's even harder if all of you are Africans because of the predominance of cultural hierarchy.

Nyani Ngabu said:

Plus it's very hard to get on the witness stand and testify against the sitting president and his deputy-president of your own country, and it's even harder if all of you are Africans because of the predominance of cultural hierarchy.

Click to expand...

......and this wont take aback any prudent person. You've just reminded me of what comrade Amilcar Cabral once said,,,,,"Hide nothing from the masses of our people. Tell no lies. Expose lies whenever they are told. Mask no difficulties, mistakes, failures. Claim no easy victories..."

As for our manners and creeds, totally absurd!

How funny is this world,,,,,now it is not Uhuru unning to the UN or
AU for assistance,,,as some said,,,but it is BintSodas herself,,doing
the ''''Okelia Moko''' that is,,,,,surrendering after all those,,sideshows
of hers.

We said it,,,many times,,,that there was,,totally nothing,,,no evidence
at all,,but some did not want to hear of it.

Now,,her revelation has taken her supporters by a big surprise,,they can
not believe it,,,they are now begging her to do everything and save them
from total,,,,embarrassment.


http://http://www.nation.co.ke/news/-/1056/2119540/-/13r6yyd/-/index.html

Which,,two of the witnesses is Bensouda talking about????

Just some,,,weeks ago,,,,she wanted the ICC court force Uhuru Kenyatta
to disclose his wealth.

Now,,,,no evidence and very close to saying,,,,,

That there is no case against president Uhuru Kenyatta.

What about Mulukas,,Africogs,,Kiais,,Dr whose,,,,, of this world,,those who
possessed so much evidence against their own president.

Are you going to help,,your Besouda????with the evidence.

Mmmmmmmmmmmm,,toooo bad for you,,,considering the volumes of articles writen
by these people.

But now,,,it is a waste of time and resources and will no longer be of any use.

They must be swimming in the deep sees of total confusion and embarrassment,,seeing
their,,only general,,god given Bensouda,,who has been leading them,,,,on the world scene
,,,against this president of Kenya,,,,suddenly,, declaring that she does not have any
ammunition.

We told them,,,that thy were dreaming after being,,mislead by this prosecutor from
nowhere who did not even understand,,anything about Kenya,,but,,because they
were led by pure hatred,,,they could not listen,,even to themselves.

Now she has made the bitter revelation,,,at last,, she says it with her own mouth,,that
all what she posses now as evidence,,,is of no importance.

She should be sacked without pay,,,by her employers,,,the Shameless British,,French
and the damning,,,Obamas,,,for misleading them and the total embarrassment she
is going to cause,,, them,,,allllll.

That is why i always advice people,,,,,,,

To think,,before they write or saying anything.

In that way,,,,,you spare yourself,,from,,constantly embarrassing yourself.

Haiyaaa,,what is happening,,,,who moved this,,whatever.

Eeeeee,,,sijui nini,,he must be,,,Mui-Israeli,,,,:israel:

Lakini,,hakuna shida,,,

Kwani,,,hata sikujua eti kulikua na thread ingine kama hii.

Nyani Ngabu said:

My hunch is that Uhuru and Ruto are complicit in the crimes they are charged with.

But the level of witness tampering that we've seen thus far is just incredible. So many of the prosecution witnesses have withdrawn from the case. I believe there are some (dark) forces behind those withdrawals.

Uhuruto, with help from some of their African counterparts have pulled out all the stops to sabotage their trials - from the AU declaration(s), the UN efforts to push back the trial date, to Uhuru assuming the EAC chairmanship from Museveni, all in an attempt to shield themselves against the ICC charges.

And by the looks of it they appear to be succeeding. The case is collapsing like a house of cards and I'd be shocked if Uhuru will ever see his day in court.

I feel for the victims who lost their lives, property, and who became permanently disabled as a result of the violence. The whole thing has turned out to be more about the innocence of the miscreants and their confederates as opposed to being about justice for the victims.

Too sad and too bad.

Click to expand...

currently ICC has remained an alleviation scheme and is not workable for the kenyan scenario..too many flaws which can only be described as a miscarriage, it is admirable that the ICC are still interested in alleviating from poverty false witnesses carrying on even when evidences are lacking