ICC judge withdraws from case against Kenya leaders sites prosecution’s negligent

Christine Van Den Wyngaert criticises prosecutors for failing to disclose evidence against President Uhuru Kenyatta.

Judge Christine Van den Wyngaert

Judge Christine Van den Wyngaert

A judge for the International Criminal Court has asked to be excused from hearing a crimes-against-humanity case against the Kenyan president and his deputy after questioning the conduct of the prosecution.

Christine Van Den Wyngaert said on Saturday she had doubts the prosecution had carried out proper investigations into charges against Uhuru Kenyatta and William Ruto, but there was no suggestion her resignation was linked to her criticism of the prosecution, according to the Reuters news agency.

“There are serious questions as to whether the prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation,” Van Den Wyngaert said.

“I believe that the facts show that the prosecution had not complied with its obligations at the time when it sought confirmation and that it was still not even remotely ready when the proceedings before this chamber started.”

Uhuru won presidential elections in March with Ruto as his running mate. The charges against the two men, who went ahead with their campaigns even after being indicted by the court, are related to post-election violence in 2007-8, which killed more than 1,000 people.

Van Den Wyngaert’s colleagues also criticised prosecutors for failing to tell Kenyatta’s defence lawyers a crucial witness was not present at a meeting where prosecutors alleged acts of violence were planned, saying the prosecution made a “grave mistake” in not doing so.

New witnesses

The loss of that witness’s testimony contributed to the acquittal earlier this year of Francis Muthaura, Kenya’s former head of the civil service who was Kenyatta’s co-accused.

Similar charges still stand against Kenyan deputy president William Ruto.

“I stress the concerns expressed in the decision about the overwhelming number of post-confirmation witnesses and the quantity of post-confirmation documentary evidence, as well as the very late disclosure of the latter,” she said.

Van Den Wyngaert said that even though the prosecution faced challenges, it had not justified how so many witnesses were interviewed after charges against Kenyatta were confirmed.

“The prosecution offers no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation,” Van Den Wyngaert said.

“The mere invocation by the prosecution of generic problems with the security situation in Kenya, without explaining how this situation affected each of the individuals involved, does not adequately justify the extent and tardiness of the post-confirmation investigation,” she said.

However, in her concurrence with the other two judges, she explained that the hitches on the side of the prosecution were not weighty enough to warrant a referral to the pre-trial chamber or withdrawal of charges against Kenyatta.

The Kenyan cases now will be heard in The Hague-based court by Judge Robert Fremr, who replaces Van Den Wyngaert, presiding Judge Kuniko Ozaki and Judge Chile Eboe-Osuji.

In a majority decision the trial chamber agreed that charges against Kenyatta will remain as confirmed for the trial set for July 9 this year.




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