Uhuru wins big as Bensouda drops charges
The withdrawal came just two days after the Trial Chamber directed Ms Bensouda to either proceed with the case within a week or withdraw it.
The ruling by Judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson gave Ms Bensouda little room to wriggle, leading to yesterday’s “Notice of withdrawal of the charges against Uhuru Muigai Kenyatta.”
“In light of the Trial Chamber’s December 3, 2014 ‘Decision on Prosecution’s application for a further adjournment’, the prosecution withdraws the charges against Mr Kenyatta,” the three-page notice announced.
She said the “evidence has not improved to such an extent that Mr Kenyatta’s alleged criminal responsibility can be proven beyond reasonable doubt…
“For this reason, and in light of the Trial Chamber’s rejection of the prosecution’s request for an adjournment until the Government of Kenya complies with its co-operation obligations under the Rome Statute, the prosecution withdraws its charges.”
However, Ms Bensouda still has a chance to revive the charges against Mr Kenyatta if she gets additional evidence and witnesses to buttress her case.
CASE NOT OVER YET
In the withdrawal notice, Ms Bensouda said the case was not over yet, though chances of getting more evidence are slim.
“As noted by the Trial Chamber, this withdrawal is without prejudice to the possibility of bringing new charges against Mr Kenyatta at a later date, based on the same or similar factual circumstances, should [the Prosecution] obtain sufficient evidence to support such a course of action,” Ms Bensouda said.
The withdrawal comes nearly four years since former Prosecutor Luis Moreno-Ocampo announced in December 2010 that he would be pursuing post-election violence charges against six Kenyans — ministers William Ruto and Henry Kosgey and radio broadcaster Joshua Sang in the first case and Deputy Prime Minister Kenyatta, Head of Public Service Francis Muthaura and Commissioner of Police Hussein Ali in the second.
They were all accused of bearing the greatest responsibility in the 2007/08 post-election violence in which 1,133 people were killed, 600,000 displaced and property destroyed.
Mr Kenyatta now joins Mr Muthaura, Mr Kosgey and Mr Ali who have been let off the hook because of insufficient evidence, leaving only Mr Ruto and Mr Sang in the dock.
Ms Bensouda’s announcement gives President Kenyatta breathing space at a time when a security crisis in the country has put him under intense national pressure following terrorist attacks in Mandera in which 63 Kenyans have been killed in two separate incidents.
The past two weeks have also seen angry Kenyans pile up pressure on the President following his government’s perceived weak response to the two attacks, leading to the departure of his Interior Cabinet Secretary Joseph ole Lenku and the Inspector-General of Police David Kimaiyo.
Immediately the news came through that the case against him had been withdrawn, a relieved President Kenyatta expressed his delight at being vindicated.
“As they say, one case down, two more to go,” he said through his communication unit twitter handle, alluding to the ongoing cases against Mr Ruto and Mr Sang.
“I am very keen to run to my wife right now and tell her what is happening. To be sincere, we are very excited,” he said.
Cord leaders Raila Odinga and congratulated the President, describing the victory as “of great significance to our country.”
“It is my hope that with this burden taken away, my brother, President Uhuru Kenyatta will now focus all his energies and attention on serving the people of Kenya to the best of his ability. I wish him well in this noble task,” Mr Odinga said.
Cord co-principal Moses Wetang’ula expressed similar sentiments saying, “this will now give the President ample time to execute his duties without any divided attention”.
Foreign Affairs Cabinet Secretary Amina Mohammed also welcomed the move. She pledged that the government would pursue ways to have the ICC drop the charges against Mr Ruto and Mr Sang “with the same energy and passion.” She added: “We are not done yet, we will pursue the dropping of the charges in the other cases.”
The victims’ lawyer Fergal Gaynor, however, said the withdrawal would “inevitably disappoint the estimated 20,000 victims of the crimes charged in this case.”
“It is regrettable that the victims have received almost nothing from the entire ICC process. While their government mounted an enormous effort to derail the few prosecutions in The Hague, it did next to nothing to hold perpetrators to account for the crimes committed. It has given hardly any support or compensation to those who were attacked in Naivasha and Nakuru,” Mr Gaynor said in a statement.
He called on the ICC’s Trust Fund for Victims to step in and urgently provide livelihood and counselling assistance to the victims.
“The victims’ quest for justice has been cruelly frustrated, both in Kenya and at the ICC. The victims believe that the prosecutor can do much more to bring at least some perpetrators to book. The challenge is to the prosecutor not to further disappoint those victims,” Mr Gaynor said.
The prosecution’s decision to withdraw the charges was also criticised by the Human Rights Watch (HRW), an international rights lobby, with Senior International Justice Counsel Elizabeth Evenson describing the decision as a “setback to efforts to end the country’s entrenched culture of impunity.”
FORCED TO RECANT
“It’s clear that a long tradition of impunity in Kenya and pressure on witnesses have been serious obstacles to a fair process before the ICC.
But the roadblocks in the Kenyatta trial make it all the more important for the ICC to figure out how it can move ahead with high profile cases against powerful suspects,” she said.
The case against Mr Kenyatta weakened considerably following withdrawal of witnesses. Ms Bensouda alleged some witnesses had been forced to recant their testimonies.
At the Status Conference on October 8, senior trial lawyer Benjamin Gumpert said the prosecution had only nine witnesses remaining down from more than 20 at the start.
The witnesses who were still willing to testify on how Mr Kenyatta met and fundraised to sponsor the outlawed Mungiki sect during the post-election violence were P-152, P-428, P-505, P-548, P-510, P-493, P-494, P-429, P-430.