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By Bernard Wainaina
CEO,Profarms Consultants®

International Criminal Court (ICC) prosecutor Fatou Bensouda’s hope to build an alternative case based on non-cooperation against President Uhuru Kenyatta, could equally collapse should President Kenyatta agree to honour summons to appear in court either by a video link or in person, legal experts have warned.

Kenyatta’s case has faced consistent hitches since its confirmation and the prosecution has been unable to proceed with the case citing lack of sufficient evidence.

Experts say that the new move to summon Kenyatta to appear at the ICC despite the resolution by African Union is a tactic to attempt to give the case a lifeline.

A group of TNA MPs have also insisted that
President Kenyatta should appear via video link, which is an option the chamber has said it could consider.

Political analyst Peter Kagwanja, is of the view that by calling President Kenyatta for a status
conference, the ICC prosecutor is trying to see if she can fix the president.


“Bensouda asked for the postponement of Uhuru’s case citing lack of evidence.
She has explored almost all options and she will be trying anything that can salvage her case,” Kagwanja says.

Another analyst Prof Edward Kisiangani, however, says by calling a status conference, the court could be trying to find out why many witnesses were changing their earlier positions, thus a chance to scrutinise the prosecutors claims that the government of Kenya had refused to cooperate.

“We have exhausted all reasonable prospects but we are under a duty to continue with investigations. We have to take a realistic view as prosecutors on which stones could be turned. As stones get less and less promising, we have made a decision that the remaining stones are characterised as pebbles and
prospects that turning them will yield evidence is minimal,” says Prosecutor Benjamin Gumbert.

The trial, which was initially set to start on April 11, last year was adjourned to July 9, November 12 last year, then to March and October this year. It is now indefinite.

Kisiangani says the status conference will
be an opportunity for the President to show the
court that he has nothing to hide.

“If he doesn’t go, it will be a plus for the Office of The Prosecutor (OTP) to say that it is an admission of guilt and could force issuance of an arrest warrant and that is all Bensouda wants,” says the professor.

Bensouda has, on several occasions, indicated her office has since lost proper grip of the case because of lack of evidence to sustain a case against Kenyatta.

Lawyer Kiratu Kamunya says Bensouda was flogging a dead horse as far as Kenyatta’s case is concerned.

He says the case collapsed a long time ago and
Bensouda’s office was trying to prove its relevance to the financiers.

He says the court has invested so much material resources and manpower, and the demands by local and international players are also high.

The African Union stood by President Kenyatta, and passed resolutions in his support following repeated failures to defer the case.

But Prof Winnie Mitullah, an Associate Research Professor at the University of Nairobi, believes the status conference is not a trap.

“It is until we actually know what is to be discussed. As for now, I don’t see it as a ground of testing impunity.”

She says the country has been reluctant to help the OTP and this could be the reason of the status conference.

It is a full bag of tricks out there for the OTP in the name pursuing “Justice” in the face of embarrassment that now faces the OTP.

The President might just call her bluff and appear in whatever means during the court session and that will be one more trick gone to waste.

Time will tell.

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