Chris Gitari, Head of International Centre for Transitional Justice, Kenya office says that facts should be separated from political arguments of the elite.
In his view, arguments by the AU are more political than the importance of the ICC case in Kenya especially for the victims.
“Let’s distinguish what the political elite say and what ordinary Kenyans say. We then get the real perspective. The arguments before AU are elite, they think otherwise- they detest the court. Kenyans want an independent court that will deliver justice. There is a sense that Kenya hopes the court remain a robust mechanism. Africa still wants the court and still demands justice. African states are still referring cases to the court,” he opined.
If the ICC halts the Kenyan case, Gitari is concerned that it will create an impunity gap in tackling atrocities committed during Kenya’s deadliest poll violence in 2008.
Despite the turbulent ICC process, Gitari feels that the court served as an assurance that something was being done to hold perpetrators to account.
Without the case, he said, victims of the violence would suffer profusely.
“If it turns out that there is no case, there will be an impact on demand for accountability. It will be a bitter taste to the mouth of victims and those who believe justice ought to be done. As a country we will be at loss.”
An assertion by the prosecution that there was a network that interfered with prosecution witnesses is also an allegation that Gitari wants probed.
He wants every aspect that could have contributed to the pre-mature termination of the case interrogated by law and discussions in upholding tenets of the international criminal law.
“It shows cases at international level can be interfered with so that cases can be brought to a halt. The conversation will move to what can be done to secure witnesses, what can be done to punish those responsible.”
Three Kenyans are so far wanted by the court over alleged interference with witnesses.
Allan Kosgey who was co-opted in the defence team of former Industrialisation Minister, Henry Kosgey, believes in the independent review of the judges who operate separately from the operations of the Office of the Prosecutor (OTP).
According to him, Pre-Trial Chamber V (b) relied on its own independence to drop charges against Kosgey.
“In our case one of the reasons why Kosgey was let off was the fact that there was only one witness who gave evidence against him. Anonymous, single uncorroborated witness is not enough, so the judges dropped his case,” he recalled.
READ: How Kenyan lawyers won Kosgey’s ICC case
Kosgey accuses the OTP of reducing the ICC to a ‘banana court’ alleging that former Prosecutor Luis Ocampo was the first to mess up as he relied on secondary evidence.
“Ocampo did not really do serious independent investigations not only in the Kenyan cases but all other cases. He depends on tertiary evidence.”
According to him, other organs of the court have a chance to redeem the image of the court by calling the Kenyan case what it is – a crumbling case without evidence.
He opines that the ‘rogue fashion’ in which the prosecution intervened in the Kenyan situation overshadows intentions of the ICC and undermines its ability to intervene in deserving situations.
Based on the weakness in the prosecution evidence Kosgey trusts that the judges will deliver a fair judgment on the motion of no case-to-answer.
He however, points that judges at the ICC rely on an inquisitorial system, which seeks to question all parties in the case in their truth finding mission.
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