Having condemned the cases against President Uhuru Kenyatta and Vice President William Ruto from the outset, and the cases having collapsed and/or being on the verge of collapse as I had predicted over two years ago, I kind of now feel sorry for ICC [International Criminal Court] Chief Prosecutor Fatou Bensouda. So I am going to start this slightly pre-mature obituary about her Kenyan cases by being nice to Fatou!
Fatou is right to argue that where a witness can be proved to have been intimidated by the accused, or by others on behalf of the accused, the intimidated witnesses’ evidence (written, audio or video) can be submitted in court. The most recent British High Court judgement I have seen on the matter is that of the President of the Queen’s Bench Division delivered on the 18th of June 2013 ( EWCA Crim 989). The principle clearly is that justice cannot be held hostage by criminals who can intimidate and threaten witnesses and victims of crime. Therefore, even where a witness has died, any witness statements (written, audio or video) can be admitted in evidence – at the discretion of the judge. Intimidating a witness is in itself a crime, and the President puts it rather memorably as follows: “A person may intimidate another person without the victim being intimidated … an act may amount to intimidation and thus intimidate, even though the victim is sufficiently steadfast not to be intimidated ” (para 9).
Fatou also wins the second point in that she does not need to prove “beyond a reasonable doubt” her allegations of witness intimidation and bribery in order to have the hearsay evidence submitted in court. She simply needs to prove her allegations to the much lower standard of “on a balance of probabilities”. One or two of the witnesses against Ruto having died, and one or two having given evidence that they felt intimidated – or were indeed intimidated – then the balance of probabilities would be that “yes, there may probably have been intimidation, we can’t rule it out – though we can’t says so beyond a reasonable doubt!”
The real problem for Fatou arises once the hearsay evidence is before the Court. At that stage, the hearsay evidence will have to pass the more stringent test of being “beyond a reasonable doubt” before being used to convict Ruto. So all Ruto’s legal team need to do is raise doubts in those witness statements – by raising questions which the absent witness are not in court to explain away. For example: can the court be sure that the prosecutor’s team did not offer money – and a flight to Europe – to entice these witnesses to make up stories about Ruto’s involvement in the killings? Some of the prosecutor’s own witnesses have already stated as much in court.
(All this reminds me of that scene in the Godfather when Don Michael is summoned before the US Senate Organized Crime Committee to be investigated. The Senate had a key witness to nail Michael on criminal Mafia charges including assassinations. As the Senate’s star witness enters the committee room surrounded by bodyguards, he sees the elderly brother he left in Italy 30 years ago – sitting next to Don Michael. The Senate hearing ends in uproar as the star witness recants his evidence against Michael!)
In short, I think Fatou will get permission to introduce hearsay evidence from 20 or so absent witnesses, but, faced with a tenacious legal team in Ruto’s corner, it is hard to see how Fatou can establish her witnesses’ credibility “beyond a reasonable doubt”.
Fatou’s cases will inevitably collapse and Fatou will be blamed for pursuing hopeless cases against Uhuru and Ruto. All that one can say for Fatou is that it was not her cases to begin with: it was the Obama White House (Hilary Clinton) and ICC Prosecutor Ocampo who decided to “charge and investigate later” in order to prevent Uhuru and Ruto from even contesting the 2012 elections. The hope was that Odinga would become Kenya’s president and allow the ICC full access to Kenya for a fuller investigation. But as it turned out the pre-emptive charges actually helped Uhuru and Ruto into Nairobi State House – and Fatou was left holding cases that were poorly investigated and prematurely charged.
So, I feel sorry for Fatou because she too was a victim – of Machiavellian White House political manipulation.