By Walter Menya
The crimes against humanity charges against President Uhuru Kenyatta at the International Criminal Court (ICC), which were withdrawn last month, return to haunt him Monday with the expected release of sensitive evidence Prosecutor Fatou Bensouda would have used against him should the case have proceeded.
The brief is a record of material evidence from the documents that the prosecution intended to use in the trial phase and sections of witness statements that were previously not publicly available.
The disclosure that was ordered by the ICC judges covers grounds on which the prosecutionâ€™s case was built. Even though Ms Bensouda admitted she could not sustain trial with the available evidence, the judges have agreed that a redacted version of the largely sensitive material should be released to the public.
The prosecution withdrew the charges against Mr Kenyatta on December 5, but Mr Fergal Gaynor, the lawyer for the victims, successfully applied for the publication of the prosecutionâ€™s Pre-Trial Brief (PTB).
Trial Chamber V (b) of the ICC on December 11 last year ordered Ms Bensouda to file a public version of the brief that she intended to use at the trial as requested by Mr Gaynor.
â€œThe chamber, therefore, considers it to be consistent with its obligation to ensure publicity of the case record to order the filing of a redacted version of the PTB pursuant to Regulation 23 (b) of the Regulations,â€ the judges said in their unanimous decision.
The judges added: â€œFor the foregoing reasons, the chamber hereby orders the prosecution to consult with the VWU (Victims and Witness Unit) in relation to the second updated PTB, and to file a public redacted version by 1600 hrs (The Hague time) on 19 January 2015.â€
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After the withdrawal of charges against Mr Kenyatta, Deputy President William Ruto and Mr Joshua arap Sang are the only Kenyans facing charges stemming from the 2007/2008 post-election violence. Previously, six prominent Kenyans had been named for their alleged involvement in the violence that claimed 1,133 lives.
Apart from giving details of what happened in Naivasha and Nakuru during the chaos, where retaliatory attacks were alleged to have been carried out, the brief will also provide information relating to the prosecutionâ€™s public allegations of interference with witnesses, Mr Gaynor told the Sunday Nation.
â€œThese are, from the victimsâ€™ perspective, matters of considerable interest,â€ he said.
The defence had fought off Mr Gaynorâ€™s request, arguing the publication of the PTB would result in â€œfurther unjustified damage to the reputation of Mr Kenyattaâ€.
Mr Kenyattaâ€™s lawyers had opposed the public distribution of the brief arguing that the details they contained had become outdated and comprised largely unsupported allegations.
For the defence, the publication of the PTB â€œwould serve only to proliferate untruths and further obfuscate and frustrate future endeavours to learn the truthâ€.
Such an endeavour, the defence argued, would not serve the interests of victims or the integrity of proceedings.
EVIDENCE NOT SUFFICIENT
In any case, the defence argued, the prosecution had publicly admitted the evidence it had was not sufficient to go to trial, which denied them the opportunity to properly test the allegations.
For Mr Gaynor, the defenceâ€™s submission that the request for public distribution of the brief was meant to embarrass President Kenyatta had no truth at all.
â€œThere does not appear to be any support for the argument that a major prosecution filing should be withheld from the public merely because an accused person considers the filing to be damaging to his reputation. Generally speaking, thereâ€™s no legal basis to justify withholding from the public a non-vexatious filing merely to prevent what the accused believes is embarrassment or damage to his reputation,â€ the victimsâ€™ lawyer said.
In his October 29, 2014 request for the publication of the brief, Mr Gaynor had argued that the surviving victims participating in the proceedings were entitled to the â€œdignity of access to the PTB and thus to the more detailed allegations contained therein regarding the role of Mr Kenyatta in the post-electoral violenceâ€.
Further, Mr Gaynor submitted that State Parties to the Rome Statute and the general public ought to have a full and informed understanding of the allegations at the heart of the case.
At the confirmation of charges in 2011, then Prosecutor Louis Moreno-Ocampo alleged that President Kenyatta and former head of Public Service Francis Muthaura, whose case was also terminated, â€œagreed to pursue an organisational policy to keep the PNU in power through every means necessary, including orchestrating a police failure to prevent the commission of crimes.â€
President Kenyatta has consistently maintained his innocence, and after the charges were withdrawn last month, he reacted by stating that his conscience was â€œabsolutely clearâ€.
â€œI am excited by this news, which I have awaited ever since the day my name was announced to the world in connection with the case. I am also deeply relieved by this decision, which is overdue by six years,â€ President Kenyatta said.
He added: â€œFor the prosecutor to sustain an obviously deficient case for so long demonstrates beyond doubt the intensity of pressure exerted by improper interests to pollute and undermine the philosophy of international justice.â€
He said the court had failed him and similarly let down the victims.
â€œThey were killed, maimed, displaced, dispossessed and utterly traumatised. I have been victimised, libelled and senselessly profiled by the same defective process,â€ he said.
On her part, Ms Bensouda blamed the Kenyan Government for allegedly obstructing the investigation by failing to surrender records of President Kenyattaâ€™s assets and those of his associates.
She further blamed the â€œconcerted and wide-ranging efforts to harass, intimidate and threaten individuals who would wish to be witnessesâ€.
Ms Bensouda, who took over the Kenyan cases from Mr Moreno-Ocampo in 2012, also blamed â€œa steady and relentless stream of falseâ€ Kenyan media reports and â€œan unprecedented campaign on social mediaâ€ to expose identities of protected witnesses.
Some of the evidence to be released by tomorrow will include further details from the confirmation of the charges decision of January 23, 2012. Then, the prosecutor alleged that prior to the election, Mr Kenyatta played the role of the mediator between PNU and the Mungiki criminal gang.
ASSISTANCE OF MUNGIKI
The prosecution had also alleged that Mr Kenyatta â€œfacilitated a series of meetings from November 2007 involving Muthaura, other senior PNU government officials, politicians, businessmen and Mungiki leaders. Initially the meetings were to solicit the assistance of the Mungiki in supporting the government in the December 2007 elections.â€
Mr Kenyatta, the prosecution alleged, continued to facilitate the meetings after the elections with a view to organising retaliatory attacks against perceived ODM supporters in Rift Valley.
Mr Kenyatta, the prosecution alleged, further â€œprovided funding, transportation, accommodation, uniforms, weapons and logistical support to the Mungiki and pro-PNU youth to carry out coordinated attacks in specific locationsâ€.
Mr Kenyatta and his team denied all these allegations in court before the prosecution withdrew the cases.
Mr James Mamboleo, an international law expert and a lecturer at Africa Nazarene University, said even though the brief did not go through the rigours of credibility, it will make public the grounds the prosecution had to charge President Kenyatta.
He added that the publication of the brief will also clear the air and end the narrative perpetuated by the defence that the trial was political.
â€œWhereas the charges may have been withdrawn, President Kenyatta could still be convicted in the court of public opinion, which could explain the reason the defence opposed the request,â€ said Mr Mamboleo.
According to Mr Mamboleo, the publication of the brief will also bring a sense of closure for the victims by openly describing the alleged planning and commission of the crimes.
For Mr Njonjo Mue, the programme adviser of Kenyans for Peace with Truth and Justice, the publication of the brief brings to the fore two issues of interest to the victims: truth and justice.
â€œEven though the house of justice was never completed because of sabotage, the reality is that the building blocks were there and which the pre-trial brief will reveal in the interest of victims and the public.â€