By Jacktone Ambuka



The cases of crimes against humanity facing prominent Kenyans, notably; president Uhuru Kenyatta, his deputy William Ruto and former journalist Joshua Arap Sang’-has presented monumental challenges to the prosecutor of The International Criminal Court (ICC). These cases are without a doubt, the most daunting yet, against the backdrop of plummeting faith of Kenyans in The ICC.

The most gigantic challenge was unprecedented withdrawal of key witnesses who were expected to testify against the accused persons. It is believed that witnesses who recanted their testimonies held critical information upon which prosecutor’s case rested.

To date, ICC prosecutor Madam Bensouda seems either confused moving forward, clutching on falling straws to save face, frying herself with her own prosecutorial oil, or unable to corroborate and prove allegations “beyond reasonable doubt.” Who knows? Maybe the prosecutor is holding onto the last “killer bullet” that we don’t know about.

But based on how the prosecutorial calendar of events has so far been executed, the prosecutor appears unprepared on technical level or outwitted by defense, particularly in the case facing President Uhuru Kenyatta.

Even in cases facing Mr Ruto and Mr Sang’, it seems to me the process is systematically culminating into “she said he said” type of narrative which is considered hearsay until proven by incontrovertible evidence.

Nonetheless, I’m not a lawyer to decipher legal interpretation of ICC cases with finality. Neither am I privy to the nature of credibility of witnesses who are testifying and the totality of evidence, including the redacted evidence that is adduced.

However, based on my experiential wisdom gleaned from my one week service on the jury bench in American court system, in which I was among 12 jurors who listened to testimonies, studied witnesses’ body language, analyzed evidence and rendered a verdict that the judge relied upon to make a ruling against a person accused of rape-it seems unfolding events at ICC have driven the ICC prosecutor in a tight corner with very limited choices. The most realistic choice is to drop the charges.

Take the choice to compel witnesses who have recanted their testimonies to testify against their will. It is upon lawyers to interpret if this action is jurisprudentially permissible or inadmissible. But in my opinion, I will tell you forcing reluctant witnesses to testify was a bad prosecutorial strategy that was bound to boomerang against ICC prosecutor.

Although I do not know the criteria ICC prosecutor used to select witnesses, it is alleged that some witnesses volunteered to testify out of monetary gain. Other witnesses have alleged that they were coerced or tricked to become witnesses. A few consistent witnesses still standing seem to lack “water tight” evidence. On her side, the prosecutor has attributed her crumbling case to bribery, intimidation and elimination of witnesses.

Furthermore, witness number 604 has turned hostile to the prosecutor. In a sworn affidavit, he confessed damaging allegations alluding that he consciously gave false testimony against deputy president William Ruto after the office of the prosecutor offered him money. He also said he never witnessed post-election violence.

Which begs the question: Was it smart for the prosecutor to compel witnesses who recanted their testimonies to testify? The answer is resoundingly no. It was a damn move. Compelled witnesses have and will badly severe already struggling credibility of the ICC and in particular, the office of the prosecutor.

By and large, it is against international legal threshold for anyone under oath to give false testimony, accept to testify without having real facts of the circumstances surrounding the case or testify against accused persons for financial gain. Even religious writ admonishes us: “Thou shalt not bear false witness.”

Perhaps ICC prosecutor should have explored other options other than compelling witnesses to testify. Pressing charges of perjury against witnesses who recanted or falsely gave their testimonies might have been a smart prosecutorial strategy. What do you think? Kwegah PA, Amboko Ambogo Seniour, Eric Mutua, Derek S. Mango, Gertrude N Angote, James Aggrey Mwamu.