Prosecution Wants Kenyatta Trial Date Vacated

On September 5, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) filed a notice to the court stating that it will “not be in a position to proceed” with the trial against Kenyan president Uhuru Kenyatta. If agreed to by the judges, this will mark the fifth time the start of the trial, which was scheduled to begin on October 7, has been postponed.

The most recent delays stem from a March 2014 order from Trial Chamber V(b) to allow additional time for the resolution of cooperation issues between the Government of Kenya and the OTP. The prosecution’s request in the Kenyatta case covers eight categories of documents, including: company records; land ownership and transfers; tax returns; vehicle registration; bank records; foreign exchange records; telephone records; and intelligence records. The prosecution has argued that the documents could either bolster its case against Kenyatta or diminish it, but it was important they receive them to make such an assessment.

Kenyatta is charged with five counts of crimes against humanity allegedly committed during the post-election violence in Kenya in 2007-2008. The charges include murder, deportation or forcible transfer, rape, persecution, and other inhumane acts. During the period of post-election violence, Kenyatta was a senior member of the Party of National Unity, allegedly presiding over the widespread persecution of members of the main opposition party.

In Friday’s notice to Trial Chamber V(b), the OTP explained the reasons why it is not in a position to proceed to trial. From an evidentiary standpoint, the prosecution said an adjournment is needed because it does not have the evidence available to prove Kenyatta’s alleged criminal conduct beyond a reasonable doubt. The prosecution noted that the “full and effective compliance required of the GoK [Government of Kenya] and anticipated by the Chamber has not materialized to date.” The prosecution claimed that the Kenyan government has either been not responsive to requests for documents, and “even the responsive material is a fraction of the information sought.”

Despite the acknowledgement that the OTP lacks sufficient evidence to put Kenyatta on trial, the prosecution noted that it would be “inappropriate” to withdraw the charges completely. The OTP said withdrawing charges would undermine the March 2014 trial chamber decision ordering the Kenyan government to fulfill its cooperation obligations and that Kenyatta’s position as “head of a government that has so far failed to comply with its obligations to the Court” makes him ultimately responsible for that failure.

Lawyers for Kenyatta and the legal representative of victims in the case have until September 10 to file a response to the prosecution notice.

9 Comments

    1. This Uhuru case n Ruto Sang case s does not really meet the minimum trace hold. The fixers are outside there. Icc end these cases n get the culprits . Let no one bear false witness . The truth must prevail n the devil wl b ashamed.

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  1. This case was a none starter from day one .One wonders whether the prosecutors bothered to investigate these cases at all. Uhuru did not have any stakes in the elections .I hold the opinion that someone desperately wanted to fix Uhuru at all costs

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  2. If Bensouda is claiming that she doesnt have enough evidence againts Uhuru Kenyatta then ICC is afailed court because it shows the manner in which the charges were confirmed to have been below the required standard.No more trust in ICC. Rural courts in Kenya seems to offer better services than ICC.Its prudent for ICC to let free Kenyan Suspects as soon as Possible because the more they continue pursuing these cases the faster the credibility of the ICC being lowered.

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  3. By Bensouda own admission OTP does not have enough evidence to prosecute Uhuru Kenyatta. She even went Ahead and stated that OTP is not sure that if provided all the financial records they are seeking they will get any additional incriminating evidence. OTP is also on record saying that even if provided the records they cannot trust that they have not been tempered with since Uhuru is the seating president. Yet now Bensouda want Uhuru as the seating president to be held responsible for obstructing evidence collection by the prosecution. This is laughable to say the least. When did it ever become possible to collect evidence from the accused that incriminate him. Any jurisprudence worth it’s name has clause that an accused has the right not to incriminate himself. That’s why upon arrest the are advised to remain silent and to seek the advice of their lawyers before saying anything. But then again you cannot arrest someone without evidence and then turn around and order the court to indefinitely postpone trial as you scout for evidence. These cases were confirmed by ICC Judges upon confirmation that there was enough evidence for prosecution to proceed. Now, what happened to that evidence? If it has now been found to be to be insufficient why not do the noble thing, withdraw the charges and swallow the humble pie, you tried the wrong person.

    ICC owe the Post election victims and Peace loving Kenyans an apology. After creating all this false hopes, all that hype about water tight evidence, the chest thumping of teaching Perpetrators a lesson comes to naught. Can OTP be prosecuted for miscarriage of justice, for lying to the world, for misdirecting the energy of the western powers to their detriment. Who will pay for all the case cost, the lawyers hired by the accused, the time wasted by the accused and their friends, the travel and accommodation expenses, the time a seating president and his deputy has had to leave their duties and attend to the case and expense of Serving Kenyans. The Job loss of Sang and wrong label hanged on their necks for years that they perpetrated raping, killing, maiming, destruction of property and citizens livelihood , the forceful eviction and displacement of thousands. Can the Assembly of state parties the only appellant independence judge now trial the court itself. Can it reflect on its conduct and it’s political manipulation in this trial. Can another independent and superior court be formed whose seat is far away from Hague to hear complains and appeal against ICC.

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  4. I am also of the view that a mechanism should be in place to hold the OTP to account for unconvincing investigations that lack depth and background checks for witnesses.
    At the very minimum, an inquiry should be established to look into the conduct of this office regardless of the end result.
    The no evidence admission and indefinite postponement submission are contradictory to my layman’s mind. Looked against the claim of a WATERTIGHT case by the OTP at an earlier stage.

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  5. I am simply Kenyan and my tribe is Kenya. I am not affiliated to any political party. It is very unfortunate that Kenyatta has been portrayed by many as a dictator and a criminal when most Kenyans know exactly what happened. Kenyatta has been used as a cover-up. The real persons who were behind these crimes are known and it is time proper investigations were made so that the culprits are brought to book for the sake of justice for the victims and also for the whole world to see. Stop this business of lying to us that witnesses were bribed and, or intimidated, there were no real witnesses in the first place, ask the human rights guys who coached them, and if they have conscience or any self respect, they should tell the truth and clear the name of Kenyatta.

    If anyone does not have a clear picture of the history of Kenyan politics, it it is not easy to understand these issues and you need to be on the ground and listen the real victims before making your judgement on hearsay.

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