Judge Eboe-Osuji from Chile, one of the trial judges set to hear the case against three Kenyans at the ICC in The Hague, has issued a ‘separate concurring opinion’ concerning the decision to drop charges against former Head of the Civil Service Francis Mathaura. His opinion should be listened carefully to by Fatou Bensouda, the ICC’s chief prosecutor.

BENSOUDA – ‘WITNESSES KILLED’

Ms Bensouda, the first African to the hold the post of chief prosecutor in the ICC, had told the judges that witnesses against Mathaura over his alleged role in the post-election violence in Kenya of 2007-08, ‘had either been killed or had died since the events’.

Bensouda went on to state that other witnesses had refused to speak to the prosecutor’s office and that the Government of Kenya had ‘frustrated her investigations’. Judge Eboe-Osuji stressed concern that Fatou Bensouda was withdrawing charges because of her claims that witnesses had been killed, coerced or bribed. In effect, Eboe-Osuji said that if these allegations were true then those involved should be themselves prosecuted.

WITNESSES WITHDRAW TESTIMONY

Last month Bensouda had claimed that ‘Witness 4’, a James Maina Kabutu, had been bribed and recanted his testimony against Uhuru Kenyatta. Witness OTP-8, Samuel Kineli Kosgey, has also withdrawn his testimony against deputy-president elect William Ruto, claiming he had been intimidated by the Prosecutor’s office to exaggerate his responses to their questioning.

Judge Eboe-Osuji is not condemning or reprimanding Fatou Bensouda but raising the point that the ICC should have been informed of the alleged events leading up to the dropping of the case against Mathaura.

SERIOUS ALLEGATIONS BACKED BY EVIDENCE?

Fatou Bensouda has gone to the media, time and again, to make allegations of bribery, witness intimidation and even murder. These are extremely serious allegations and should not be thrown around lightly.

There are only about three scenarios that fit here. One is that honest witnesses have been bribed or intimidated to retract their testimony. The second is dishonest witnesses had issued false statements of their own volition against the accused in the first place. The third is that a prosecution witness or witnesses have been coerced or encouraged to give evidence against the accused, or exaggerate their testimony.

If Fatou Bensouda has evidence of bribery, corruption, lying witnesses, intimidation or murder she should prosecute. If the Prosecutor’s office is found to have been involved in questionable behaviour, they too should be investigated. In the meantime, public pronouncement of unsubstantiated allegations by either side, by anyone, should stop.