When former ICC prosecutor Louis Moreno-Ocampo came to Kenya, he made two promises. He said that he would nail the perpetrators of the post-election violence in no time and he would use the ICC to make Kenya an example to the world. This, he said, was because he had water-tight evidence of six individuals who he would be charging for crimes against humanity.
In December 2015, ICC Prosecutor Fatou Bensouda withdrew the charges brought against Kenyan President Uhuru Kenyatta due to her own admission of lack of evidence. This was the fourth of the six individuals who charges were being dropped despite the continuous promise by the Ocampo and Bensouda that there was enough evidence to convict the alleged perpetrators.
After Bensouda withdrew Uhuru’s case, the Victim’s lawyer asked the court to force her to publish her Pre-Trial Brief on the premise that Kenyans wanted to know the evidence she had. Bensouda never opposed this application despite knowing that her allegations were no longer supported by any evidence as she had said.
On Monday, January 19, 2015, Bensouda went ahead to make these damning allegations public. But she also went ahead to give a disclaimer that some of this defamatory material was “no longer sustainable”. She added that this was because the allegations were supported “solely by witnesses upon who the Prosecution would not have relied at trial.” This means that she has released to the public unsubstantiated allegations against individuals who are not before the court and who have no Locus Standi to defend answer the allegations before the ICC.
In other words, Bensouda with the help of the Victims’ lawyer have turned the case over to the court of public opinion where these issues are deliberated through emotional and political reasoning. The material released by Bensouda after she had already withdrawn the charges against Uhuru does not only injure the image of the President but defames a large number of Kenyans named in the document. These individuals include key leaders and government officials currently serving the Kenyan nation.
This immoral decision to defame people with unsubstantiated claims by Bensouda and the ICC begs a lot of questions and must attract adequate consequences. Bensouda and the victims’ lawyer must be taken to task to justify the move to tarnish people’s names without substantiating those claims.
When you accuse someone of something, the burden is on you to prove those allegations. If you lack the evidence to do so, you must withdraw and/or apologise for erroneously or maliciously accusing someone. Bensouda even claims to have had evidence of people allegedly bribing and intimidating her witnesses but never brought this information to the judges.
The material released by Bensouda is not only damaging to those named but is also incitement on the victims of the post-election violence who may never get justice because of the malicious proceeding of the international court. It is a cover up of the failure of the prosecution to investigate the post-election violence and an insult to the international justice system.
Bensouda and her office failed in their job. She must therefore not be allowed to cover up her failures by making wild allegations that she is unwilling to substantiate. Kenyans, and especially the victims of the post-election violence, deserve respect from the ICC which should do the right thing and apologise for its prosecutor’s failures.