Five myths about Bensouda’s ICC pre-trial brief that must be debunked

Last month, the International Criminal Court (ICC) at The Hague made public the pre-trial brief in the now defunct case of the Prosecutor vs Uhuru Muigai Kenyatta.

The 69-page legal brief lays out the backbone of the case against Mr Kenyatta. In December last year, Chief Prosecutor Fatou Bensouda withdrew the case against Mr Kenyatta on the grounds of insufficient evidence. But she did so without prejudice. Which means she didn’t “terminate” the case, but merely “withdrew” it. Bottom line — the case could be re-instituted if fresh evidence becomes available.

The brief, which is damning, charges that Mr Kenyatta planned and funded the Mungiki militia to commit unspeakable crimes and then “cleaned up” the evidence, especially the most critical witnesses.

Ms Bensouda’s brief implicates many prominent Kenyans who allegedly worked with Mr Kenyatta in the killings and rampage after the 2007 elections. Predictably, most have come out loudly to deny complicity, or involvement. Others have threatened to sue Ms Bensouda. Some believe Ms Bensouda is preparing to indict them. Mr Kenyatta’s lawyers have dismissed the brief as rumour and hearsay that is injurious to their client. I have no doubt the brief is damaging to Mr Kenyatta and those named. They have faulted the ICC judges for not permitting them to officially rebut the brief in court. The judges ruled that it is water under the bridge. While we may never know the truth, let me slay a few myths about the brief.

Myth number one is that Ms Bensouda was responsible for the release of the Kenyatta brief. Those in the Jubilee column — as well as those fingered by the brief — charge that Ms Bensouda is out to get Mr Kenyatta by hook, and especially by crook. That’s why, they wrongly claim, she conspired to release the damning document. Nothing could be further from the truth. It was the indefatigable Fergal Gaynor, the counsel for the victims, who applied to the court for the release of the brief. Importantly — and underline this — it was the ICC judges who ordered the brief to be made public. Ms Bensouda was a mere a bystander. She only complied with the court’s order to release the document.

Myth number two is the charge that the brief “proves” that Ms Bensouda will go to any length — including bribing witnesses — to nail Mr Kenyatta. Someone needs to speak up for Ms Bensouda, and I am happy to do so. While I don’t work, or speak, for the ICC, or Ms Bensouda, I can state categorically that she is a lawyer of the highest ethical and professional standards. Her moral standing is of the highest and most unimpeachable order. Her legal skills are as fine as Beethoven’s musical skills. She has no bone to pick with anyone. But she is sworn to enforce the Rome Statute of the ICC. I want the bloviators to get off her back.

Myth number three is that she has worked with the civil society to “procure” witnesses. This line, which disparages civil society as “evil society” has been propagated in Kenya most poignantly by Uganda’s David Matsanga. Mr Matsanga, who was once in the pay of LRA’s Joseph Kony and Zimbabwe’s Robert Mugabe, masquerades as Mr Kenyatta’s defender. I am flummoxed why Kenyan media has given airtime to someone who has carried water for Mr Kony and Mr Mugabe — among the most brutal men of our time.

Let me state it clearly and on the record — no one in civil society, including me, has ever “procured” or “coached” any ICC witness. Neither has the ICC nor Ms Bensouda. That is a bunch of malarkey.

Myth number four is that both Ms Bensouda and Kenya’s civil society were in cahoots with ODM’s Raila Odinga to nail Mr Kenyatta and prevent him from becoming the President of Kenya. This requires a truly twisted mind to cook up. I have seen bogus accusations to this effect against Mombasa Senator Omar Hassan and UN Rapporteur Maina Kiai — both of whom were at the Kenya National Commission on Human Rights during the PEV.

That is baloney — pure and simple. So are silly charges that I and civil rights leaders Muthoni Wanyeki, John Githongo, George Kegoro, Ndung’u Wainaina, and Gladwell Otieno conspired with Ms Bensouda and Mr Odinga to “fix” Mr Kenyatta. Jubilee needs to look in the mirror instead.

Finally, myth number five is that the pre-trial brief is a lie. The allegations in the brief, which may never be tested in court, comport with reports in official and NGO documents available publicly. Their specificity and detail should raise concern. I will take one example. The brief charges that several individuals who were allegedly involved in the mayhem — and were either potential or actual witnesses before the ICC — have either disappeared, or been killed. The Kenyan state should tell Kenyans what happened to them.

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Fatou Bensouda ICC