Bensouda’s Immoral Claims On Kenyans Must Have Consequences

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 The material released by Bensouda after she had already withdrawn the charges against Uhuru does not only injure the image of the President but defames a large number of Kenyans named in the document.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.


6 thoughts on “Bensouda’s Immoral Claims On Kenyans Must Have Consequences

  1. I dont think immoral is the right word in this case, in bad taste maybe. I am no political pundit, what follows is my own opinion.
    1) There are 2 tribes, haves and have nots. History is replete with such scenarios. Europe included. The wheel cannot be re-invented, African nations ought and should have learned from these examples. One can be looking at something but never see it!
    2) Power, as you rightly said, comes in different forms. Political goodwill is another thing all together. The only thing that is permanent in politics are personal interest (locally atleast). Sadly the political, economic and academic elite have taken advantage of their positions to lord it over the masses (educated or otherwise). And the tribal card used too well. Is it history repeating itself (read colonisation once more and tactics used)…
    3) It is said that ignorance of the law is no excuse. If only the electorate can have a common mindset, things would be different. The French revolution..

  2. I have had a steep learning curve when it comes to Kenya and so it might seem inappropriate for an Aussie to be responding but I feel obliged to say SOMETHING.
    I’m bemused by your psychic abilities in predicting what is going to happen in December 2015 which is still eleven months away.
    I’m left unclear as to whether you think the alleged perpetrators are guilty of anything.
    A term I frequently encountered is “… the widespread post 2007 “election” violence that followed the announcement of what is internationally recognised as a corrupt and deeply flawed election”.
    Clearly there were MORE than six people responsible. It seems so tragic that the people of a country that is in screaming need of better infrastructure, fairer schooling, higher standards of medical care, more efficient roads etc could systematically go around destroying existing infrastructure. The lives of skilled people whose valuable education and experience were needed were extinguished and a cycle of insecurity, lack of trust and lifelong trauma was perpetuated by the widespread sexual assault of women, teenagers and little girls.
    So, it happened. A strength of Kenya is its tribal system but that is also a weakness. Whilst ever a government continues to hand out funding on the basis of the tribe of the applicants, the overall good for the country will not be increased.
    These are questions to which I genuinely would like to know the answer: Although the current government is largely Kikuyu, and it is the single largest tribe, and the Luhya have been perpetually in opposition since independence, is the combined number of all non-Kikuyu Kenyans greater than the number of Kikuyu Kenyans?
    Is there a popular or charismatic Luhya or member of any of the other 40 non-Kikuyu tribes who could unite the people and so the country could collectively say, “Enough already! Let’s combine our efforts to improve standards of transport, education, health etc for ALL Kenyans?”
    Do you think there is the political will amongst Kenyans to allow the “good of all Kenyans” to be stronger loyalty than tribal loyalty? Do you see tribalism as increasing or decreasing in influence.
    As I say, I can’t quite tell if you think the six originally named were innocent, or just that the ICC should not have stated so confidently that it had enough evidence to convict, but then backed down on that statement?
    I THINK (and please correct me if I am wrong) that BOTH the major parties were initially involved in the violence, and the first massacre of women and children was authorised by the “non-Kikuyan runner up”.
    Irregardless of that, would you agree that the people with power (and there is more than one form of power than political, especially economic, power) have been systematically “taking out”/disappearing/murdering either the witnesses themselves or the witnesses families/relatives and in the end, individual witnesses have decided that it was just not worth it to remain as witnesses, and have withdrawn their testimonies?
    I have been blogging for and was planning on posting the story of one young woman but to do so under a fake name. In that post-election trauma, she was pinned down, forced to watch her parents being shot and their home set on fire, and then she was raped by seven men and left HIV positive. According to how strong or frightened she felt, she would write, “Yes, you are welcome to use my story” or “No, because I am down as a witness for the ICC but there is no form of witness protection, please keep my identity unknown.” Her fear was reignited with the body of another ICC witness being pulled from a river about three weeks ago.
    Her witness potential became a moot point, however, when she died only one week ago and this beautiful spirited inspiring 25-year-old’s body stopped being able to fight the ravages of being HIV positive. My husband and I are the legal guardians/custodians of her five year old son.
    I hope telling you this gives you some insights into why I personally identify with your blog so much. I know it was painful for … my “daughter” – she easily could have been as our two sons are seven and ten years older than her. respectively, and she has asked us to be his “grandparents” as well, which is a great honour.
    I’m also curious to know if you and others who have much more of an idea of what cultural shifts are occurring and in what direction, than I am, if you think things are becoming any “better” for Kenyans who belong to the less-prestigious tribes?
    Against Gender Violence, Sons of Africa, MENding Africa – there does seem to be a plethora of organisations committed to ending violence against women and the overall systemic repression of women in Kenya. I was sent a link to a website for Siaya and EVERY person in EVERY photo on EVERY page is a male. It felt so peculiar to be “looking” at this and realising that whoever put the website together was completely unaware of what a powerful (and powerfully negative) image this was portraying: women seem to simply be written out of the country’s history and decisionmaking. That may just have been the peculiarity of that particular Governor (?). It’s the observations of regular, astute and politically aware women and men of Kenya from whom I would like to learn.

  3. Normally in a court of law, the case speaks for itself. It needs no defense. The purpose of a lawyer is to find loopholes in the system to get their client to walk, or to puncture holes in the case presented and render it unsustainable.

    The UK case never went to full trial. Thus we dont even know what his defense had, as for Bensouda, i believe it is critical that she lays bare all the material she had for the case. If possible, she should also name the witnesses and link their affidavits to them (unless she has reason that would expose them to danger). This would give more clarity and closure for everyone and yes I wanted to know what she had in those files all this time. Maybe you did not want to know, but I did.

    It is the same thing that happens when you are arrested for a traffic offense. The prosecutor lays his case public, and your lawyer fights for you. If later the case does not take place, the prosecutor if so compelled, can publicly state what they had against you. It is not their job to say whether it is all false or all true, that is the single purpose of trial.

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