Lawfare Tyranny

A few weeks back we noted Kenyan “human rights activist” Ken Wafula dramatically recanted his support of the International Criminal Court’s pursuit of Kenyan President Uhuru Kenyatta and Deputy President William Ruto after he was presented with evidence detailing “bogus and planted” witnesses marring the case.

ICC Chief Prosecutor Fatou Bensouda, on the other hand, continues — against all accepted norms of established, civilized jurisprudence — to defend, apparently without qualm, her determined use of recanted witness testimony.

How does she justify this? According to her filing in the court’s registry,

“For present purposes…it suffices to submit that the circumstances surrounding the witnesses’ recantation of their prior statements are such that they cannot, at this stage, provide a sufficient basis to conclude that the [statements] are incapable of belief.”

Thus, even if recanted and procured under questionable circumstances, testimony is valid so long as Bensouda says it is? Convenient! So much for impunity!

Here, in an hard-hitting op-ed for Lawfare Tyranny, is how Evans Monari — a highly respected senior litigation attorney in who argued successfully before the ICC in 2011 — described the shifting justifications of the Court in its case against Ruto and Joshua Sang:

Gone are the stories of meetings where commanders are named and guns distributed. Gone are the stories of planning and an organized network of perpetrators. What remains is but a skeleton of the original concept. The Court has fought to find a way to keep the case afloat despite the weak evidence.

Witnesses were summoned to testify against their will for the first time in the ICC’s history, and to the surprise of the signatories to the Rome Statute. Recanted statements were admitted into evidence, even when the witnesses told the judges under oath that those accounts were lies. Modes of liability were expanded and charges were re-characterised, all in an attempt to increase the options available to the Prosecution.

Similarly, when the collapse of the case against President Kenyatta was imminent, and the rancour about non-cooperation was at its highest, the Court ordered a special status conference and ordered the President to attend, even though his attendance this was not a legal requirement. This demonstrated the Court’s insatiable propensity for the pursuit of individuals and the creation of scapegoats, rather than the administration of justice. The Court hoped that the President would not attend, thereby violating his conditions of summons, such that a warrant of arrest could be issued for him.

Now, while Bensouda has demonstrated time and again that fairness is not her overriding concern, it nevertheless seems fair to ask: When she says the recanted statements “were submitted by the Prosecution, discussed at length with the witnesses and in legal arguments and ultimately admitted by the majority of the Trial Chamber as proof of the truth of their contents” — and, apparently, facts now irreversible — would Bensouda take the same “frozen in time” approach if a witness who formerly testified that Ruto and Sang had done nothing wrong were to suddenly come forward with new claims of perfidy and law-breaking? Or is her approach to evidence completely situational and based primarily on what helps move her case forward?

After more than a decade of ICC shenanigans, does anymore seriously believe it is the former and not the latter?

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