Capital FM (Nairobi)

Kenya: Mixed Reactions to Bensouda's Uhuru Application

Nairobi — The notification by International Criminal Court (ICC) Prosecutor Fatou Bensouda that she did not have enough evidence against President Uhuru Kenyatta and asked for more time to gather evidence was met with mixed reactions.

Those who welcomed the notification urged Trial Chamber V (b) to drop all charges against Kenyatta citing flaws in investigations and handling of prosecution witnesses.

"It is an admission that her office and her predecessor left her with a bungled box of puzzle pieces which can never interlock well enough to form a complete or rational picture. However, instead of further postponing the inevitable, I would request her to consider doing the honourable thing and drop the case altogether," businessman Chris Kirubi urged.

Though he emphasised on the importance of giving victims of the 2007/2008 Post Election Violence (PEV) a closure, Kirubi noted that it was imperative that fair and right processes are observed to protect rights of all parties including accused persons.

He said that the prosecution had failed to meet the evidential standards of proof required to make her case succeed.

"While we may not hasten to count the chicks before they hatch, her admission that the evidence she has cannot meet the required threshold is refreshing for once. It is an admission that her office and her predecessor left her with a bungled box of puzzle pieces which can never interlock well enough to form a complete or rational picture," he said.

Commentator Ngunjiri Wambugu said allegations made by the defence had actually come to pass especially on claims of corrupted investigations, collection of evidence and witness recruitment.

In his view, Bensouda had done the honourable thing of admitting that she has insufficient evidence against Kenyatta.

Wambugu felt that Bensouda's position could add the court some credibility since she has demonstrated that the court is fair by admitting flaws on evidence against Kenyatta.

"Her judgment call has a benefit of presenting the court as a court that is trying to seek for justice rather than a court that is out to win by all calls necessary. The decision is giving an impression that justice is an important aspect," he said.

Wambugu however thinks that Bensouda could also have made the notification on realisation that she was losing the case based on the loopholes in the prosecution evidence.

"On the flip side she could have realised that she could have lost the case. May be she is trying to cut losses." Wambugu said.

Nominated MP Johnson Sakaja who also urged the court to drop all charges against the President, his deputy and former journalist Joshua arap Sang said prosecution's strategy in investigating the Kenyan cases had serious loopholes that was violating procedures of fair trial.

According to him, having the number of suspects dropped from 'Ocampo six to Bensouda three' was in itself a demonstration that the foundation under which the suspects were selected was questionable.

"We are happy to see that Bensouda has realised that indeed this case has no evidence. It was based on a lot of fabrication, she talks of lying witness. We sympathise with the situation because she came into the picture when Ocampo had done handed over flouted cases. It is her duty to have a just process, to get justice from a just process," he asserted.

Victims Legal Representative Fergal Gaynor asked Bensouda to explain what factors had impacted her conclusion that she had insufficient evidence.

"The victims will also want a very clear explanation as to why, after all these years, the Prosecutor has not yet collected sufficient documentary evidence which, combined with testimonial evidence, would be sufficient to satisfy the evidential standards required at trial. None of this is intended as questioning in any way the integrity of the Prosecutor or her team," Gaynor said.

According to Gaynor, Bensouda's announcement was total disappointment to the victims who also wanted to the prosecutor to explain if her past allegations of non cooperation by the Government of Kenya and allegations of witness and victims intimidation played a role.

International Centre for Policy and Conflict (ICPC), Chief Executive Ndung'u Wainaina who was disappointed by Bensouda's announcement said the case was however not over and also urged the court to think of the plight of the victims who still need justice.

According to him, Bensouda has still some evidence which she can piece up to hold her case against Kenyatta.

"The case is not off. The prosecutor has still significant material that she can rely on. The question is that if that evidence can help to tie up the case. Not reaching the evidential threshold it means she could be having a number of pillars but don't have the other pillar. She still can build her case," Wainaina asserted.

He also said the prosecutor's office should not be blamed since the Kenyan cases were marred by allegations of witness and victims intimidation including alleged killings of key witnesses.

"People will tend to blame the Office of The Prosecutor but that is a misplaced accusation. We know what has been going on since 2008; both the cases have faced a lot of murkiness. One thing is that there has been consistent intimidation and bribery of prosecution witnesses. There has been disappearance of witnesses," he claimed.

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