Lawyers urge ICC to dismiss Kenyatta case

Charges in the International Criminal Court (ICC) against Kenya’s president-elect Uhuru Kenyatta could all but crumble after a second prosecution witness recanted his evidence against Mr Kenyatta’s deputy president-elect, William Ruto. By Steve Mbogo, March 19, 2013, BDlive

Charges against another accused, Francis Muthaura, who is head of Kenya’s public service, were withdrawn on Monday after another prosecution witness also withdrew his evidence.

Lawyers said the case against Mr Kenyatta could collapse as witnesses fear to testify against people who are in senior positions in government. Mr Kenyatta’s lawyers on Monday asked the ICC to dismiss charges against him after the case against Mr Ruto collapsed. The case against Mr Kenyatta, on charges of crimes against humanity over bloodshed in the aftermath of Kenya’s 2007 election, has been further complicated by his victory in a ballot which was held this month.

The case is also an important test for the court, which was set up more than a decade ago as the world’s first permanent war crimes tribunal, but has secured only one conviction.

Mr Kenyatta and Mr Muthaura were among six suspects initially charged by ICC prosecutors with orchestrating violence after the 2007 election, when about 1,200 people were killed.

But on March 11, prosecutor Fatou Bensouda said the decision of a key witness to recant testimony forced her to drop charges against Mr Muthaura.

She said that would have no effect on Mr Kenyatta’s case, which was closely linked.

Mr Kenyatta’s lawyers will call for the case against him to be dismissed or at least postponed, said one lawyer who was familiar with the case but did not want to be quoted by name.

“The collapse of the case against Mr Muthaura has a profound impact on the viability of the prosecution’s case against Mr Kenyatta,” the lawyer said.

The prosecutions are based on much the same evidence.

Commenting on the withdrawal of the two cases, the chairman of the Law Society of Kenya, Eric Mutua, said the odds are now stacked against the ICC.

“Witnesses will generally fear to testify against people in senior leadership positions. They will have expectations of reward but also may be because of fear of possible repercussions.”

The main witness in the case of the deputy president-elect withdrew all his statements, which included claims that the post-election violence was planned; he also retracted his statement that he had visited the home of the deputy president-elect.

“I have never personally visited any of the homes of William Ruto and I did not witness any event and cannot vouch for the truth or otherwise of any allegation that has been made or attributed to me against him,” said the witness in the affidavit.

The witness said he had been coached by the officer of the prosecutor at the ICC and civil society groups in Kenya on how to structure his evidence.

The witness had also alleged Mr Kenyatta financed an ethnic militia group, known as Mungiki, to carry out retaliatory attacks against members of the Luo and Kalenjin ethnic communities. His evidence was one of the factors that influenced the two cases to be recommended for full trial.

“There appears to have been a structural problem with the manner the case was initially brought forward. It looked political.

“Withdraw by the two witnesses may suggest that they are not very confident of the information they will use against the suspects. It also means the ICC may have depended on very weak evidence and poor investigations,” said lawyer Clifford Turana.

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