The International Criminal Court has been criticised
for targeting African leaders at the expense of
offenders from the West. One African is in sharp
focus as African leaders debate the continent’s
relations
with the ICC in the face of President Uhuru Kenyatta’s
and Deputy President William Ruto’s trial. Chief
Prosecutor Fatou Bensouda of The Gambia, her
suitability and record have for long been the subject
of furious debate. Bensouda served as Minister for
Justice and Attorney General under current President
Yahya Jammeh, who came to power in a coup against
a democratically elected government. While minister,
the government was accused of harassing
journalists, arresting the leader of opposition and 20
of his supporters on a fabricated murder charge,
shooting dead 12 students during a protest against
the state and for years refusing to hold elections.
Bensouda, clearly weighed down by the fact that 10
years and $10 billion later the ICC has little to show
and is under threat of being shut down, has allowed
some of the lapses from her native country to follow
her to The Hague.
Bensouda and the ICC largely used intermediaries to
find witnesses for the Uhuru and Ruto cases. The
ICC’s history of ‘outsourcing’ witness sourcing to
local NGOs is well known and highly criticised.
In the court’s first completed case, against Congolese
rebel leader Thomas Lubanga, the Prosecutor’s office
was publicly accused by presiding judge Adrian
Fulford of trying to use witnesses that had taken
bribes from local human rights groups acting as
intermediary organisations. The cases against
Mathieu Chui and Callixte Mbarushimana from the
DR Congo have collapsed following public contraction
of witness testimony. In these cases, local human
rights organisations acted as intermediaries in
sourcing witnesses.
The charges against Uhuru were brought and
confirmed based on the evidence of Witness No 4
who has changed his testimony four times and once
retracted them in their entirety. The witness has
been dismissed but the ICC still seeks to prosecute
Uhuru without the testimony on which the charges
were brought.
Steven Kay QC, Uhuru’s defence counsel commented
during the hearings: “a key fact underlying the
confirmed charges has been established to be based
upon a lie”.
More witnesses are withdrawing from the Uhuru and
Ruto cases. Bensouda has blamed it on witness
intimidation. But when challenged, she has not
provided evidence to support this claim. Kay has said
“There is not a single scrap of evidence accepted by
the judges that President Kenyatta has interfered
with witnesses. The comments are made as part of a
strategy to hide a weak case.”
Bensouda further showed lapses or lack of
understanding of Kenya’s judicial process when she
issued a warrant of arrest against journalist Walter
Barasa, saying she had compelling evidence that he
had bribed witnesses. She said Kenya is obliged to
arrest Barasa and send him to The Hague. However,
under Kenyan law, the warrant must be presented to
a Kenyan court. If Barasa opposes it, then the ICC
must prove its evidence is compelling. In saying
Kenya had to arrest Barasa to show it was
‘cooperating’ with her, Bensouda was playing politics
for the galleries, instead of pursuing justice.
Although Barasa has expressed willingness to testify,
under Kenyan law, he can oppose the warrant and
appeal if the high Court rules in favour of the ICC.
The matter could go up to the Supreme Court. The
ICC appears to have forgotten to conduct this basic
research. Bensouda has made it very difficult for
Kenya and Africa to trust her as a facilitator of
justice. her record so far has been wanting.

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