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Monday, September 28, 2020

LETTERS: Why do we fear ICC in the face of weak prosecution?

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Why do we fear ICC in the face of weak prosecution?

Dear editor,

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The acquittal of Laurent Gbagbo and Charles Ble Goude ( excuse my English spelling) by the International Criminal Court (ICC) and the subsequent dismissal of the application of the prosecution team to keep the acquitted persons in Hague pending the appeal was a great restatement of impartiality of the court in disposing of cases. The Gbagbo acquittal should tell everyone that the judges of the court are impartial and slavish to their Rules.
I am yet to have the full judgment to appraise the evidence led by the prosecution and the holdings and reasoning underlying them.

But having listened to the Trial Chamber’s Decision on the 16th January 2019 on the application of the prosecution to keep the acquitted persons pending appeal was succinctly clear that ICC strives for impartiality.
Gbagbo case presented exceptional circumstances and the decision of the trial chamber strengthened its position on impartiality and adherence to its rules. For the first time in ICC trial history, a high profile accused persons were acquitted at the conclusion of the case of the prosecution. The court found the evidence of the prosecution so weak that it could not allow the accused persons to enter their defense. That decision was marvelous and goes to show that accused persons shall not be allowed to self- incriminate themselves by responding to weak and non-cogent evidence at the close of the case of the prosecution.
In Common Law, courts are mandated to, at the closure of the case of the prosecution, appraise the evidence led and determine whether a prima facie case was established.

At the conclusion of the case of the prosecution, the defense is obliged to enter No Case Submission or No Case to Answer thereby moving the court to see whether the evidence received from the prosecution was sufficient enough to allow the accused to enter into his or her defense. Without the defense filing no case to answer application, every trial court is mandated to suo moto (on its own) appraise the case of the prosecution to determine whether prima facie case was laid or not.

Thus, the Trial Chambers’ majority decision to acquit Gbagbo and Ble Goude even before they opened defense showed the extent of the prosecution’s weak and porous evidence which was led. It as well served justice to the accused persons by not allowing them to respond to the weak case of the prosecution.
The learning points from the Gbagbo case are that criminal trials must not be instituted at the behest of powerful imperialist new-colonial states. The evidence and summary judgement have highlighted the involvement of a certain powerful state in the internal affairs of Ivory Coast.

It’s becoming glaring that the current ICC prosecution team is not diligent in gathering and presenting cogent and compelling evidence against accused persons. So far the Kenya Five’s case could not proceed, Jean Pierre Bemba was discharged and now Laurent Gbagbo and Ble Goude were acquitted. In all these weak prosecution and prosecutorial mishaps, it is the victims who lose while prosecutors continue to receive fat salary for non-diligent work.

Courts in The Gambia and elsewhere in general must adopt the bravery of the ICC Trial Chamber that acquitted Gbagbo and Goude. Accused persons should be discharged at the conclusion of the case of the Prosecution regardless of the motive and desire of the state.
Gbagbo’s acquittal must reinvigorate the confidence of the international community in the impartiality of the court. It established that the presumption of innocence until proven otherwise goes with the Accused person from the beginning of his or her trial to the end.

 

Simon Sabally

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