Of all the things former Attorney-General Amos Wako used to utter, this for me stands out: “I am ready, give the evidence and I will prosecute. If the evidence is sufficient, solid
enough to sustain a prosecution, I will go ahead.”

The converse is, of course, significant: If the evidence was not sufficient to sustain a prosecution, AG Wako would not go to court.

What AG Wako sought to avoid was a situation where his case would either collapse midstream or go all the way only for the accused to be freed for lack of sufficient evidence.

A case, as the learned friends say, rises and falls on the strength of the evidence adduced in court.

Many a case has collapsed because the prosecution’s evidence was found wanting.

Somebody please stop this circus at the International Criminal Court (ICC).

First, the case against President Uhuru Kenyatta collapsed a long time ago.

This, we have it on the authority of none other
than the Prosecutor Fatou Bensouda.

No, she did not say her case had collapsed; she admitted she has no evidence to sustain the prosecution of Mr Kenyatta.

Second, never before have witnesses made such a mockery of the term witness; brought into disrepute investigations; trashed investigators; made fools of themselves and a court than the scarecrows assembled to bear witness against Deputy President William Ruto.

Of course, the men in the dock are Mr Kenyatta and Mr Ruto, but, from where I sit, the ICC is on trial.


But first the witnesses: What is their integrity?

They are supposed to have seen and observed what they wrote in their statements.

These are supposed, therefore, to be testimonies, proofs or declarations of what they observed or watched unfold before their own eyes.

They wrote statements for the ICC which they said were true,but which they now disown as false.

By their own testimonies, they were in it for money; by their own evidence they sought lucre abroad; in their own words they were not witnesses to that which they claimed to have
seen and or heard.

So, if they fabricated tales to get ICC money, is it possible that they have changed positions in exchange for local money and lucre?

Ms Bensouda says so, but cannot prove it!

But she asks the court to compel them to testify despite their recanting their evidence.

In the dock, albeit shielded from public view, they have turned the spotlight squarely on those who interviewed them and before whom they recorded their statements.

They say they bore false testimony at the behest of their ICC interrogators.

And enter Mr Walter Baraza and Dr David Matsanga.

The former is a Kenyan journalist who, it emerged last year,helped ICC identify witnesses and who Ms Bensouda wants arraigned before her court for interfering with her witnesses.

The latter is a Ugandan who, branding himself a pan-Africanist, weeps louder than Kenyans for the ICC accused.

It is Dr Matsanga’s case that ICC’s witnesses were procured.

That is to say they did not come forward of their own volition to bear witness against the ICC accused.

Dr Matsanga says the evidence was manufactured.

Another word for procure is buy.

It is Dr Matsanga’s declared position that Mr Baraza has the key to the shenanigans of ICC witness recruitment fiasco.


That brings us to ICC’s investigators and investigations.

One must query how diligent they were in their work.

One must wonder how they identified their witnesses and if they vetted these people and what they said before enlisting them to help ICC establish, beyond a scintilla of doubt, that Mr Kenyatta and Mr Ruto are guilty of perpetrating murder,displacement of populations and rape.

Obviously, Ms Bensouda’s predecessor Luis Moreno Ocampo paraded the original six accused without solid evidence to sustain their prosecution which is why three were set free.

Ms Bensouda inherited this fine mess.

So last year, five years since the election violence from which the cases sprung, she
was asking for time to look for evidence against Mr Kenyatta.

Where does that leave the court?

Since inception in 2002 ICC has had only two convictions yet by 2012 it had used up US
$900 million and this year had its budget increased from US $115 million to US$122 million.

ICC accused are almost exclusively Africans, drawing accusations of racial bias and antipathy from the African Union.

Clutching at straws, Ms Bensouda must hope that parading President Kenyatta before the justices may help salvage ICC’s reputation.

It’s too late, baby.

Opanga is a media consultant;

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