Fatou Bensouda takes first step to throw the case against Uhuru Kenyatta out of the ICC

ICC Prosecutor Fatour BensoudaThe excellent ICC prosecutor, Fatou Bensouda, may have realized that there is insufficient evidence to continue with prosecution in the case against Uhuru Kenyatta by telling judges that she is withdrawing all charges against former Head of Civil Service, Francis Muthaura, who is charged with crimes ranging from murder to rape during the bloody violence that erupted after the disputed presidential election of 2007. Uhuru’s defence team, have maintained that the prosecution’s analysis was that  Uhuru and Muthaura colluded to exercise a level of control over the Mungiki and the police forces, such that the allegedly planned and co-ordinated post-electoral violence could take place.”

Defence lawyers, Steven Kay and Gillian Higgins, say the two cases are intertwined. They have argued that “Any decision regarding the liability of Muthaura would necessarily, on the prosecution’s own analysis, impact upon any determination of Uhuru’s liability. In short, the mode of liability as confirmed cannot be maintained against Uhuru without Muthaura,”

According to the Prosecutor, she wants to drop the charges because important witnesses have either been killed or have died, and some have refused to give evidence. She reportedly told judges that the Kenyan government has been unwilling to give enough assistance as they attempt to reach crucial witnesses. And she also informed judges that one critical witness had recanted. Apparently, this makes any successful prosecution of the matter against Kenyatta, unlikely.

Although Bensouda later told the court that “My office will pursue and continue with prosecuting the rest of the three cases,” it will prove difficult to proceed with the case against Uhuru, simply because the two cases are closely related based on the prosecution’s own legal analysis.

Uhuru Kenyatta had in the  past emphatically said that most of the allegations made against him were unsubstantiated, and that in the absence of  evidence that was given by a certain Witness 4, whose testimony has already been dropped, there is difficulty to prove anything against him.

The judge has asked Ms Bensouda to  provide reasons in writing why the prosecution has chosen to drop the cases now after challenging an application filed in November by the defence.

 

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