Consequences of Our Choices

I’m back and refreshed after an election season in which we surprised everyone, including ourselves, by respecting the decisions of our institutions.

It was touch and go when activists like Dennis Itumbi were orchestrating campaigns against the Supreme Court alleging that it was compromised by the CJ’s supposed closeness with Raila Odinga. Itumbi, some may recall, was arrested late last year on the suspicion that he was witness tampering (hacking into email accounts of protected witnesses in the Kenyatta/Muthaura case). After his release, he made a complaint against the ICC prosecutor which the Trial Chamber dismissed on the basis that the Prosecutor had no role in his arrest.

On to recent news from the ICC cases: the pre-trial chamber has approved an addition to the charges facing Kenyatta. Judge Trendafilova allowed the Prosecutor to re-insert an allegation that victims were shot dead Nakuru and Naivasha in the course of the attacks against civilians. The guns identified by the Prosecutor are AK47s and G-3 rifles- both types are common in Kenya and are standard issue amongst Police and Paramilitary formations. The Judge further stated that after confirmation of charges, the Prosecutor could only amend charges with the consent of the court. No consent is ordinarily required prior to confirmation. According to the court, the Prosecutor was required to provide evidence supporting her allegation- this she did through four witness statements. Judge Trendafilova, after analysing the statements and party submissions on the matter ruled that this was sufficient to permit the Prosecutor to amend the charges.

The ruling also carried a blunt warning to the Prosecutor that in carrying out investigations after Confirmation of charges, she must bear in mind that the Court will require an explanation from her as to why she was unable to produce the evidence prior to confirmation. Any such evidence will be analysed to ensure that it is necessary to establish the truth, or that it is justified in ‘certain circumstances’.

So why was the Prosecutor unable to produce this evidence earlier at the confirmation proceedings? The answer, according to Judge Trendafilova’s ruling, is troubling. The Judge was persuaded by the Prosecutor’s explanation that investigations were hampered by threats to witnesses, lack of cooperation, security concerns and difficulty in approaching insider witnesses. If this was the operating environment for the Prosecutor prior to these elections, it is likely to get worse now that Uhuruto are in charge of the nation’s executive organs. Despite the institutional independence ingrained in our constitution, old habits of knee-jerk loyalty to State House die hard. The Prosecutor is unlikely to get much more cooperation out of Kenya’s security and intelligence apparatus; though it would be a pleasant surprise if she did.

And with unrelenting pressure on her witnesses, it’s understandable why Fatou Bensouda calls these the hardest cases she is undertaking at the ICC.

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Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

AfricLaw

Advancing the rule and role of law in Africa

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