Judges at the International Criminal Court (ICC) have terminated the charges against President Uhuru Muigai Kenyatta and lifted the summons and accompanying conditions the court had issued for him to appear before it.
In its unanimous decision on Friday, Trial Chamber V(b) said its termination decision did not stop the prosecution from revisiting the charges against Kenyatta if new evidence became available. The chamber did not, however, acquit Kenyatta as his lawyers had been asking in previous submissions.
The trial chamber made its decision after the prosecution withdrew the charges against Kenyatta on December 5 of last year. The prosecution withdrew the charges because they said they did not have enough evidence to prove their case beyond reasonable doubt.
Trial Chamber V(b) said its decision also did not affect any protection the ICC may be giving witnesses. The chamber said it retained jurisdiction over any matters that may arise in relation to Article 70. This is the article in the Rome Statute that deals with witness intimidation, witness bribery, or other offenses against the administration of justice.
The chamber also said the Kenyatta case had not completely ended because the prosecution was going to appeal its decision not to refer the Kenyan government to the ICC’s membership for not fulfilling its obligations to the court. The judges also said that they would consider any application to reclassify documents that had previously been marked as confidential.
Friday’s decision by Trial Chamber V(b) brings to an end what was at times referred to as Kenya case two or the PNU case (PNU being the Party of National Unity that was former president Mwai Kibaki’s vehicle for reelection in the December 2007 presidential poll). Kibaki’s reelection was contested and sparked violence across Kenya. That violence was the subject of two Kenya cases in which the prosecution had sought to show balance by splitting the cases between the two rival political parties at the time, PNU and the Orange Democratic Movement (ODM) party.
Kenyatta was the last of three people the prosecution had sought to be put on trial for five counts of crimes against humanity for attacks that took place in late January 2008 in the towns of Nakuru and Naivasha. Members of the Kalenjin, Luo, and Luhya ethnic groups who were perceived to be ODM supporters were killed in those attacks. Part of the prosecution’s case was that the violence in Nakuru and Naivasha was in retaliation for the attacks against perceived PNU supporters that occurred in late December and early January 2008 in the greater Eldoret area and Nandi area.
When Pre-Trial Chamber II issued summons in Kenya case two in March 2011, it issued them to three individuals: the then Public Service chief Francis Kirimi Muthaura, former police chief Mohammed Hussein Ali, and Kenyatta. In January 2012, the pre-trial chamber confirmed the charges against Muthaura and Kenyatta but declined to confirm the charges against Ali and discharged him. In March 2013, the prosecution withdrew the charges against Muthaura after the sole witness against him recanted his statement to the prosecution. With Friday’s decision by Trial Chamber V(b) the balance the prosecution has tried to maintain since the start of the Kenya cases has been broken. All that remains is Kenya case one or the ODM case.
In that case, Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang each face three counts of crimes against humanity for the attacks in late December and early January 2008 in in the greater Eldoret area and Nandi area. Members of the Kikuyu ethnic group and perceived supporters of PNU were killed in those attacks. At the time Ruto was a key ODM leader. In 2013, he was elected deputy president on the ticket of a different party. The trial of Ruto and Sang began in September 2013 and is ongoing.