A status conference called by International Criminal Court (ICC) trial judges on Monday to address “housekeeping” matters around defense applications in the second Kenya case relating to the effect of the prosecution withdrawing a key witness ended up focusing on a prosecution notice to withdraw charges against one of the accused persons.
Once ICC Prosecutor Fatou Bensouda informed the court of her notice to withdraw charges and the broad reasons for making that decision, most of the proceedings at the status conference focused on whether the prosecutor could simply withdraw charges before a trial formally began or did the prosecutor have to apply to the trial judges to be able to withdraw the charges.
Bensouda’s action is the first time the ICC prosecutor has given notice to withdraw charges against an accused person in the court’s 10-year history. She said she made the decision because of a campaign of intimidation and interference that has ensured no credible witness is able to come forward and testify against former Public Service Chief Francis Kirimi Muthaura. The former Public Service Chief had been charged with five counts of crimes against humanity for his alleged role in the violence that shook Kenya five years ago.
Muthaura’s lawyer, Karim Khan, repeatedly asked the judges of Trial Chamber V to declare his client free even if it meant them issuing an oral edict and then follow that later with a written decision elaborating their reasoning.
“When the prosecuting authority say, they don’t have a case that must be given an awful lot of weight, and I do say, absent any provision preventing that requiring leave, your Honours should say, “Yes, the matter should be withdrawn,” Khan told the judges.
Khan also said that the issue of the charges against Muthaura being withdrawn and what effect that has on the charges of his co-accused should not be decided together. Muthaura’s co-accused is Uhuru Muigai Kenyatta, who, on Saturday was declared elected president by the Independent Electoral and Boundaries Commission following Kenya’s General Election that took place on March 4. Kenyatta, however, cannot be sworn into office until the Supreme Court rules on a petition set to be filed this week by his main competitor, Prime Minister Raila Amolo Odinga. Kenyatta’s running mate during the election was William Samoei Ruto, who is facing three counts of crimes against humanity for his alleged role in the violence that shook Kenya after the 2007 presidential poll. Ruto is scheduled to face trial with radio journalist Joshua arap Sang in May. Kenyatta’s trial is has been provisionally scheduled for July.
Trial Chamber V Presiding Judge Kuniko Ozaki declared that the case against Muthaura cannot proceed further. She said, however, that the judges would issue a decision soon on whom between them and the prosecutor can withdraw the charges against an accused person before a trial.
Ozaki gave the prosecution until this Wednesday to file submissions on how withdrawing the charges against Muthaura would affect the case against Kenyatta given that they were charged jointly. She said that Kenyatta’s defense team and the victims’ lawyer will have an opportunity to respond to the prosecution’s submission on March 18 when the status conference will continue.