Will justice prevail in Kenyatta's crimes against humanity trial?

A Kenyan protester looks at photographs of post-election violence during a demonstration in Nairobi in 2011. [Simon Maina/AFP]

• A photograph taken on April 8, 2011, shows then Kenyan Deputy Prime Minister and Finance Minister Uhuru Kenyatta (2nd left) at the International Criminal Court. [AFP]
  

While opinion is split, nearly everyone has something to say about it. Some people support the postponement of the trial, while others say the ICC prosecution should persevere. Others still are calling for a Kenyan alternative to the international court.

The ICC's case against Kenyatta has suffered a number of setbacks since it started, with numerous witnesses withdrawing their testimonies and allegations of witness tampering on both sides of the case. In December, ICC Prosecutor Fatou Bensouda admitted that she did not have enough evidence to try Kenyatta for crimes against humanity during the 2007-2008 post-election violence, and on January 23rd, the prosecution team requested to postpone the trial indefinitely.

Kenyatta has 'more pressing' matters to focus on

Supporters of Kenyatta say the prosecution's lack of watertight evidence and the withdrawal of crucial witnesses have irredeemably weakened the case.

"It is obvious now that the case against the president is fatally flawed and crumbling," Juja lawmaker Francis Munyua Waititu told Sabahi. "Then why should the president waste his energy, time and resources on a matter which has no head or tail?"

Waititu said Kenyatta has more pressing matters to focus on such as the fight against al-Shaabab, initiating development projects and overseeing the transition to the devolved system of governance.

"Dragging the name of a democratically-elected president of a respectable democracy through the mud by falsely accusing him of committing crimes against humanity, yet there is not an iota of evidence, is an outright abuse of court process," said Nairobi-based lawyer Aomo Kelly of Odiwuor, Aomo Kelly & Associates Advocates.

"I hope the prosecutor owns up that she inherited a weak case from her predecessor," he told Sabahi. "But the time has come to end the circus and apologise to Kenyans and the international community for taking us on a wild goose chase."

The latest postponement gives Bensouda three months to gather additional information, including Kenyatta's financial records, which the prosecutors concede may still not provide strong enough evidence to continue the case.

"The longer this case continues in limbo, the more it taints the credibility of ICC and weakens its global stature," said Anthony Githendu, head of sales at the Kenya Institute of Management.

"The natural thing to do when a prosecutor admits she does not have incontrovertible evidence against a suspect is to drop the charges and let the judges acquit the suspect and not to seek additional time to gather further evidence," he told Sabahi.

Victims seek justice by any means

Nonetheless, supporters of the case against Kenyatta say justice must be served regardless of who the defendant is.

"As a father whose son was killed by a mob in the 2007-2008 post-election violence, I have waited for elusive justice for more than five years," said Joseph Otieno, 61, a charcoal trader in Nairobi's Kibera slum.

"Now, with the talk of inadequate evidence, witnesses being coached, the evidence gathering procedure being flawed, plus other legal jargons, I fear the little hope I had will be eroded if Kenyatta's case is dismissed," he told Sabahi.

While Otieno says it is yet to be proven whether Kenyatta is guilty or innocent, the ICC trial gave him hope.

"Having a big shot in the dock emboldens me that my son will get justice," he said. "It also gives me hope that the wheels of justice are still grinding on, albeit slowly."

"The country's long-term peace and security hinges on the conclusion of the ICC cases," he said.

A Kenyan solution?

Still others offered a third option: a local approach outside of ICC jurisdiction. "Now that the ICC is unable to solve the riddle of who caused post-election mayhem, let us go back to the drawing board and find a Kenyan-driven solution to the problem," said Kitutu Chache South lawmaker Richard Onyonka.

"Let us take over from ICC and establish a domestic justice system," he told Sabahi. "Indeed, I am happy because the judiciary is fast-tracking the creation of International Crimes Division, a special court with similar power to ICC to handle crimes against humanity."

Henry Muthee, 56, a small-scale farmer in Naivasha who lost his cousin in the clashes, said the best way to heal Kenyans' wounds is "for the government to set a local court which will try all the perpetrators of the clashes who obviously are more than the three suspects at the ICC".

"And because the prerogative of providing security to citizens belongs to the government, it should therefore compensate all clash victims unconditionally," Muthee told Sabahi.

But Margaret Macharia, 52, who ran a small bookshop that was torched in the clashes in Eldoret, a town 320 kilometres outside Nairobi, expressed doubt that a Kenyan-led solution would be just.

"If the ICC with the clout it wields is unable to pin down those responsible for chaos, then returning the matter to the jurisdiction of the Kenyan courts is closing the chapter altogether," said Macharia, who now sells second-hand clothes at Gikomba market in Nairobi.

She urged the court to overlook the witnesses who lied and those who gave false evidence because the case is not hinged on the testimony of dozens of witnesses who withdrew but on the "hundreds of others who gave evidence".

"Let the ICC judges determine if there is substantial evidence to try Kenyatta beyond a reasonable doubt and without emotions based on his high station in life," she said.

Forgive and forget

Irungu wa Ndirangu, 44, a taxi driver in Nairobi's Zimmerman estate, said since Kenyatta was elected, then the people found him innocent through the ballot box.

"Let us forgive each other and forget the past," Ndirangu said, adding that the case should be postponed while Kenyatta is in office. "No head of state should face such trials while in office because a guilty verdict may inflame the nation."

But Jerry Kenyansa, national chairman of the Counties Commuter Welfare Association (COCOWA), said that if Kenyatta was innocent, he should have no fear co-operating with the ICC.

"President Kenyatta should not be let off the hook yet until he satisfactorily co-operates with ICC prosecutors," he told Sabahi. "If Kenyatta has nothing to fear or hide, then he should allow the ICC prosecutors' unhindered access to his bank accounts because they allege he personally channelled large sums of money to subsidiaries who paid perpetrators of the violence."

The Kenyan government should also be held accountable for delays in Kenyatta's case, he said.

"[The government] should … assist the ICC with crucial evidence it has against Mr. Kenyatta, rather than hide it under shrouds of state sovereignty," Kenyansa said.

Biding time

Sheila Mugambi, a 29-year-old dentist in training at Kenyatta National Hospital, said justice is unlikely as long as Kenyatta is in power.

"[Kenyatta] is in charge of the Kenyan military, in control of the police, in charge of the intelligence and has vast wealth," she said. "Against this background, it is impossible for witnesses to freely testify against such a powerful suspect."

"It is better to buy time until the suspect is no longer the head of state," she told Sabahi. "I also would be happy if judges ordered fresh investigations to determine whether Kenyatta and the government machinery have covertly intimidated witnesses to withdraw or recant testimonies or bribed them to change their mind."

Kenyatta pledged during his swearing-in as president in April 2013 to co-operate with the ICC to clear his name.

"I wonder what has suddenly dawned on him to abruptly change his mind," Mugambi said. "This prompts me to conclude that the guilty ones are always afraid."