The case against Kenyan president Uhuru Kenyatta at the International Criminal Court (ICC) appears to be on the brink of collapse. Prosecutor Fatou Bensouda told judges this week that she had insufficient evidence to bring the case to trial.
The case was scheduled to start on February 5 next year, but Bensouda has asked for a delay of three months so she can look for more evidence.
Kenyatta is facing charges of crimes against humanity which stem from electoral violence that hit Kenya following a disputed presidential poll in December 2007.
He is charged with murder, persecution, forcible population displacement, and rape as an indirect perpetrator. The crimes allegedly took place in the towns of Nakuru and Naivasha in Kenya’s Rift Valley.
In a separate case, Deputy President William Ruto and journalist Joshua Arap Sang went on trial in September on similar charges.
In a December 19 submission to judges, Bensouda revealed that in recent weeks she had dropped two key witnesses from her case, meaning she did not have enough evidence to bring it to trial.
“Having carefully considered my evidence and the impact of the two withdrawals, I have come to the conclusion that currently the case against Mr Kenyatta does not satisfy the high evidentiary standards required at trial,” Bensouda said in a statement released the same day.
“I therefore need time to complete efforts to obtain additional evidence, and to consider whether such evidence will enable my office to fully meet the evidentiary threshold required at trial.”
One of the witnesses who has been withdrawn, known only as P-0012, told prosecutors on December 4 that he was lying about events at the centre of the case. He was subsequently removed from the witness list.
“P-0012’s account lay at the heart of the prosecution’s evidence, providing a critical link between the accused and the crimes in Nakuru and Naivasha,” Bensouda informed judges.
In October, Kenyatta’s lawyers told judges that P-0012 had been paid to change his evidence.
“The defence for President Uhuru Kenyatta warned the pre-trial chamber and the trial chamber of the falsity of the allegations and the evidence,” Kenyatta’s lawyer, Steven Kay, told IWPR after Bensouda’s latest submission to judges. “Our warnings were not heeded. We now have from the mouth of the witness that he lied, just as we advised the judges he was lying.”
Kay alleged that the prosecution has failed in its duty to consider and investigate evidence that could exonerate his client. Kay said he would file a response to Bensouda’s filing in the New Year.
The second witness, known as P-0011, had to be dropped because he refused to testify. According to Bensouda, this witness had been expected to give evidence “regarding the intermediaries who allegedly oversaw the attacks on the accused’s behalf, as well as evidence regarding the logistical support provided to the attackers”.
The defence had previously complained that witness P-0011 had collaborated with P-0012 to incriminate Kenyatta.
The revelations follow the withdrawal of a third witness in the Kenyatta case on December 16 after she refused to consent to the disclosure of her identity.
Bensouda told judges that this witness “still has strong concerns for her personal safety and that of her family”.
The prosecution has repeatedly complained of widespread intimidation and “unprecedented” levels of interference in its cases against the Kenyan president and his deputy.
In October, the court charged a former journalist with bribing and attempting to bribe witnesses.
PROSECUTOR STILL HOPEFUL OF SECURING EVIDENCE
The prosecutor told judges in her filing this week that further lines of inquiry, some of which were “not previously open to the prosecution”, could provide the evidence she needs.
“There is potential for these investigative steps to produce evidence shedding light on key allegations in this case,” she wrote. “The prosecution believes they must be pursued in accordance with [court procedures], to ensure that every effort has been made to hold to account those most responsible for the crimes committed during the 2007-2008 post-election violence and to seek justice on behalf of the victims.”
Bensouda submitted that as well as giving her more time to find evidence, the proposed delay to the trial start date would also give judges time to rule on her request for a finding of non-compliance against the Kenyan government.
Bensouda wrote to judges on December 2 informing them that Kenyan officials have failed to hand over Kenyatta’s financial records, as her office requested as far back as April 2012. She asked judges to rule that Kenya had failed to meet its obligations to the court.
Bensouda said that if this request was successful, it could compel the Kenyan government to hand over the information.
“It is necessary to exhaust this line of inquiry – hitherto blocked by the [government] – to determine whether the existing witness testimony regarding the accused’s alleged funding of the [electoral violence] can be corroborated by documentary evidence,” Bensouda stated.
She said that despite the current setback, she remains committed to pursuing justice for victims of the 2007-08 violence.
“It is precisely because of our dedication and sense of responsibility to the victims in this case that I have asked the judges presiding over the case for more time to undertake all remaining steps possible to strengthen the case to ensure justice for the victims,” she said.
“My decision to apply for an adjournment today was not taken lightly, and I have explained fully to the judges the reasons for my exceptional decision. I have and will continue to do all that I can to realise justice for the victims.”
J.J. Wangui is a freelance reporter in Nairobi.