ICC Prosecutor Fatou Bensouda, says she shares the victims’ frustrations in the Uhuru Kenyatta case, “caused by the delay in giving full effect to their right to justice.” Bensouda was reacting to the Fergal Gaynor, the Legal Victims Representative statement who requested the Pre Trial Chamber Judges to review the legality of the Prosecutor’s decision to cease active investigation. Read: Anger, bitterness as victims seek to keep Kenyatta case alive However, in response, the Prosecution requests the Chamber to dismiss the Request in limine. Alternatively, should the Chamber reject her motion, it should set a timetable for the Prosecution to respond to the allegations in the request on the merits. The following are the grounds she lays: (i) the LRV has no standing to make the Request; (ii) the Prosecution has not decided “not to proceed” for the purpose of article 53(2) of the Rome Statute (“Statute”); and (iii) even if, arguendo, the Prosecution had so decided, the Pre-Trial Chamber II (“Chamber”) has no power under article 53(3)(b), or under article 54(1) read together with articles 21(1)(b)-(c), 21(3) and 68, to review that decision. In her defense, Bensouda says, Gaynor was informed by letter that, “In the Prosecutor’s view, there is insufficient evidence to substantiate any further prosecution in the Kenya Situation at this time, and that the Prosecution is not conducting further active investigations “at present” because, absent genuine cooperation from Kenya in relation to the pending cooperation requests, there is no immediate prospect of strengthening the evidence already gathered.” Read: Bensouda withdraws charges against President Uhuru KenyattaProsecution’s application to dismiss in limine the Victims’ request for review of Prosecution’s decision to cease active investigation
