By MOSES MICHIRA
Kenya: Prosecutor Fatou Bensouda has told President Uhuru Kenyatta that his case at the ICC could be reopened if new evidence is found.
The prosecutor was responding to a plea for acquittal filed by Mr Kenyatta’s lawyer at the Hague-based court. Bensouda argued that Kenyatta could not be acquitted because his crimes against humanity charges would only be withdrawn for lack of evidence.
In her application before the trial court, she submitted that Kenyatta’s co-accused Francis Muthaura was never acquitted even though his case was terminated owing to lack of evidence.
“It would mean that if evidence emerged in the future strongly implicating both Messrs Muthaura and Kenyatta in wrongdoing during the post-election violence, Mr Muthaura could be charged and tried while Mr Kenyatta would not,” says Bensouda.
Mr Kenyatta’s attorneys Steven Kay and Gillian Higgins had requested the trial chamber to acquit the President of the crimes he had been accused of.
The defence team argued that Kenyatta could be charged a second time over the same crimes even after being cleared by the ICC following the pending formal termination of the case.
“… we would be entitled to verdicts of not guilty being entered. That is fair,” the defence said earlier. Denying Mr Kenyatta the “not guilty” verdict would be unnecessarily tying the stigma in relation to reputation of their client, they argued.
The disagreement between the prosecution and the defence teams is based on a legal principle of ‘ne bis en idem’ meaning that an accused person cannot be tried more than once on the same allegations.
For Bensouda, Kenyatta’s trial has not yet begun and therefore the principle cannot be applied in the case, even after the charges have been withdrawn.
