By Aden Bare Duale
Those who favour the prosecution in President Uhuru Kenyatta’s case, and many devoted to the cause of international justice, have argued that it is failing not because of the prosecution’s ineptitude, but rather because the accused has intimidated the court and its witnesses since he became President. That argument does not survive scrutiny.
Uhuru Kenyatta was not President of Kenya in October 2011, when the confirmation hearings were held; that honour fell to Mwai Kibaki. The court’s jurisprudence in this case has established that the investigations should largely have been concluded by the time of the confirmation hearing. Now, either the investigations were largely complete before the confirmation hearing, or they were not.
If the investigations were not largely complete by the time of the confirmation hearing in 2011, then the prosecution failed to abide by the court’s jurisprudence. If the investigations were more or less concluded by the time of the confirmation hearing in 2011, then they were largely concluded by the time Uhuru Kenyatta was elected President in March 2013.
And if they were more or less concluded by March 2013, then the prosecution had enough evidence to convict Uhuru Kenyatta before he was elected President. So the prosecution, and those who prefer its telling of events, cannot now argue that his election to the presidency was the point at which their case fell apart. They were required, by their own jurisprudence, to ensure that their case was ready before that point.
In fact, the first horn of the uncomfortable dilemma cuts closest to truth. The prosecution, it is now clear, did not prepare adequately for the case. This was clear before the confirmation hearing, and it became even clearer after the confirmation hearing, during the saga which centred on witness 4’s testimony.
The prosecution behaved badly, and the defence caught them out. The prosecution was faced with a dilemma: either admit that it had handled the evidence incompetently, or admit that it had deliberately withheld evidence from the defence and the court.
It chose to plead incompetence. That pleading was accurate.
We must return to the matter of witness 4’s conduct. He was a crucial witness at confirmation. For our purposes, the critical claim is his assertion that he attended a meeting at State House on 3 January 2008, at which the accused was present.
He swore an affidavit to that effect. The judges at confirmation relied on his affidavit to establish that the meeting had actually taken place, and to confirm the charges.
And the prosecution’s theory was that, at this meeting, firm plans had been laid, with the participation of the accused, for the violence. Witness 4 was a crucial witness for the prosecution, since his evidence, if true, established that the accused had been involved in directing and planning crimes against humanity.
Unfortunately, in a previous affidavit, sworn in support of his application for asylum in another country, Witness 4 had clearly indicated that he was not at the supposed meeting of 3 January 2008 at State House.
Rather, he had claimed in the asylum affidavit that he had merely been told of the meeting by another person. Not for the first time, witness 4 appeared to have contradicted himself; he was eventually withdrawn by the prosecution.
The more serious problem arose from the fact that both affidavits had been in the possession of the prosecution all along. In fact, they had specifically asked the court, not once but twice, to keep the asylum affidavit from the defence.
The court complied, and the inconsistency in the evidence did not come to light at the confirmation hearing.
The case against Uhuru Kenyatta was duly confirmed, even though the prosecution knew, or should have known, that its key witness was unreliable; and even though they prosecution had failed in its duty to investigate and disclose exculpatory evidence.
Eventually, the asylum affidavit emerged, and the defence went to war. It argued that the failure to disclose witness 4’s inconsistent affidavits was proof that the prosecution conduct of the case was unreliable, and possibly unlawful.
In any case, the defence argued, this behaviour was clear proof that the prosecution was acting bad faith: how could it use a key witness to confirm the charges when it knew, or should have known, that he had lied?
The prosecution faced a dilemma: either say that they knew that the witness had lied, in which case they had acted in bad faith when they relied on his evidence; or say that they did not know he had lied, in which case they were incompetent. Incompetence or malice: that was her dilemma.
She chose to argue incompetence. In particular, she argued that no one in her office had understood the importance of the inconsistency in Witness 4’s evidence.
That is, even though her office had read both statements, and even though Witness 4 was a key prosecution witness at confirmation, no one in the prosecution office understood that the inconsistency in his statements destroyed his credibility.
If you want to know why the prosecution’s case is on the verge of collapse, then that is all you need to know. You simply need to notice that the prosecutor herself has admitted in court that her office did not understand that inconsistent statements by a key witness would destroy the credibility of her case.
The judges of the chamber, almost despite themselves, reprimanded the defence for its careless handling of the investigation, and its failure to do its duty to ensure that a fair trial was held, before demanding a complete review of the evidence.
This was the only reasonable decision available, since not only did it emerge that the prosecution had used a lying witness, it also emerged that of the 31 witnesses whom the prosecution hoped to use at trial, 24 of them had only been interviewed for the first time after confirmation.
If the process of evidence review in the prosecutor’s office could miss such a blatant inconsistency in the case of witness 4, then no one should put any great trust in the interviews of the majority of witnesses for trial, which came after confirmation.
Indeed, Judge Christine van den Wyngaert, was particularly blunt: in her ruling, she made it perfectly clear that the prosecution’s case was simply not ready to go to trial, and that in bringing it to trial, the prosecution had violated the rights of the accused.
If you want to understand the apparent failure of the prosecution’s case, look to the prosecution’s carelessness with the evidence, not to the fact that Uhuru Kenyatta is President.
The writer is Kenya’s House Majority Leader