By Nzau Musau
Despite seemingly valid objections by Uhuru’s defence on the summonses, the judges insisted his presence at a critical juncture of the case was inexcusable.
Before the summon was issued, Prosecutor Fatou Bensouda and victims lawyer Fergal Gaynor had closed ranks in opposing termination of the cases.
In their separate filings, the two pushed for an indefinite postponement of the trial until the Kenyan government fully cooperates with the court. Both pinned their arguments on Uhuru’s double role as an accused and President of Kenya.
“It would be inappropriate for the prosecution to withdraw the charges at this stage in light of: (i) the Government of Kenya’s continuing failure to cooperate fully with the Court’s requests for assistance, and (ii) Mr Kenyatta’s position as the head of the GoK,” Bensouda said while requesting for postponement of the October 7 trial date.
In that application, Bensouda reminded the judges that Uhuru is a “head of a government that has so far failed to comply with its obligations to the court” and whom “under the Constitution of Kenya, is ultimately responsible for that failure”.
She referred the court to her arguments in a similar applications she made in January this year while opposing Uhuru’s bid to terminate the case. In the January application she claimed the government had “blocked part of the investigation in this case.”
“Lack of cooperation can be imputed to the accused in light of his position as the head of government,” she claimed.
Bensouda insists that what she is looking for is of “critical importance.” She told the judges that the information she is seeking is “relevant to a central allegation in this case– the alleged funding of the post-election violence.”
She claims where she to obtain the information, it could “prove decisive both from an incriminatory and exculpatory perspective, in a prosecution for crimes of the most serious international concern.”
“He has been the President of Kenya since April 2013 and, as the head of government, is in a position to ensure that Kenya fulfills its obligations under the Rome Statute, if he wishes it to do so.
She, nevertheless, acknowledged in the January application the proceedings are against Uhuru in his personal capacity and not as President. “The reality is, however, that the actions of the Government of Kenya under Mr Kenyatta’s leadership have had an impact on the prosecution’s ability to investigate this case,” she said demanding that the judges address the impact “before any decision is made on the future of these proceedings.”
Most powerful
Gaynor has been more direct in demonstrating the conflation of Uhuru’s roles as an accused and as a president. In his September 10 application opposing termination of the case, Gaynor told the judges that the situation obtaining is unprecedented. He claimed Uhuru “controls a government which continues to fail to comply to the judges directions”, he is “the most powerful and influential person in Kenya” and is “better placed to ensure Kenya complies, or fails to comply.”
He claimed the government’s inaction speaks for itself; that if the evidence requested were harmless or exculpatory, it would have been provided to the court years ago.
“The court must not retreat in despair in the face of a ruthless and unrelenting campaign of obstruction of justice by Mr Kenyatta’s government,” he said.
He claimed that using his role, Uhuru had engaged in “overtly hostile conduct” towards the court whose potential to contribute to an atmosphere adverse to the prosecution’s investigation on the ground, as well as to foster hostility towards victims and witnesses has been noted by the court previously.
He quoted Articles 131 and 132 of the Constitution to say Uhuru is the most powerful man in Kenya. He said Uhuru has a constitutional obligation to ensure that Kenya fulfils its treaty obligations.
Gaynor’s application which irked the defence a great deal claimed that Uhuru has “complete control” over his Cabinet secretaries, that the Attorney General operates at his beck and call, and that he chairs all crucial security organs.
“With such immense formal power and informal influence in Kenya, nobody is better placed than the accused to facilitate, or to obstruct, the prosecution’s investigations in Kenya. The only reasonable inference to be drawn is that he has chosen to obstruct the investigations against him,” he claimed.
Gaynor also complained that the freedom and flexibility afforded to Uhuru by the court “is unprecedented in the history of international criminal justice.” He said Uhuru had not “set foot in an ICC courtroom in three years.”
“He has repaid that generosity with gross and scandalous insults towards this court, and with interfering with the prosecution’s collection of evidence by deliberately failing to secure his government’s compliance with the prosecution’s requests for assistance and with the Trial Chamber’s directions,” he said.
Uhuru’s defence has virulently opposed these claims.
Uhuru’s home-area MP Moses Kuria (Gatundu South) speculates that the reason why judges want him to attend must have something to do with his official capacity other than as an accused.
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