ICC prosecutor rejects Uhuru’s bid to end case

The Hague. ICC Prosecutor Fatou Bensouda has asked the court to reject the application by President Kenyatta to stop charges against him because it “comes nowhere near the high threshold required for a stay.”

The prosecution is also opposed to holding an evidentiary hearing that the accused had requested as an alternative to dropping the charges against him.

In the event the Trial Chamber decides to consider the application, Ms Bensouda says, that should not stop the trial of Mr Kenyatta from starting.

The prosecution holds that the trial of President Kenyatta can run simultaneously with the determination of application to stop proceedings.

“The Accused’s application for a permanent stay of proceedings (“Application”) comes nowhere near the high threshold the Appeals Chamber has established for such relief. On the contrary, the matters raised in the Application show why a trial is necessary,” Ms Bensouda said in her response.

“The Application proceeds on two fronts: (i) assertions regarding alleged offences against the administration of justice by P-0118 and [Redacted]; and (ii) attacks on the credibility of two prosecution witnesses. Neither surpasses the high bar required for the imposition of a stay,” the response dated November 5 states.

The prosecution argued that the issues President Kenyatta raised in his application would be better raised at cross-examination and not grounds to stop the trial.

“Even viewed in the light most favourable to the Defence, the arguments regarding the credibility of the Prosecution’s Mungiki witnesses merely raise possible avenues of cross-examination and lines of defence.

The Defence’s arguments on witness credibility — which omit facts that undermine the Defence’s position and which the Prosecution disputes — are reasons to have a trial, not reasons to avoid a trial,” the prosecution said.

‘ABUSE OF PROCESS’

October 10, President Kenyatta asked the ICC to stop the case against him citing “serious, sustained and wide-ranging abuse on the process of the court carried out by” three witnesses against him in collaboration with the court’s investigators.

In the application, President Kenyatta had alleged that his witnesses have been intimidated or interfered with, to change their testimony “for reward”.

The application had further asked the judges of the ICC that if the accusations against the Office of the Prosecutor (OTP) of abusing the court process were proven, “it would necessitate a permanent stay of the proceedings”.

“An evidential hearing on abuse of process would require the calling of live witnesses,” President Kenyatta said in the public redacted application of October 10.

Mr Kenyatta’s lawyers had raised queries concerning the conduct of OTP 118, OTP 11 and OTP 12, prosecution investigators and an intermediary.

His defence team had stated that on OTP 118, they had “extensive evidence” that the witness worked with the investigator, described as an intermediary, to intimidate and interfere with potential defence witnesses.

Last week, the Trial Chamber V (b) allowed the prosecution to exceed the 20-page limit in its response to President Kenyatta’s application.

Ms Bensouda has now responded in 41 pages according to the public redacted version, outlining the reasons why the application should be rejected.

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