The Jubilee Government faces a tough test of unity after the ICC prosecutor signalled the possibility of ending President Kenyatta’s case even as she seeks more witnesses against Deputy President William Ruto.
Prosecutor Fatou Bensouda on Thursday asked the court to defer Mr Kenyatta’s trial that was scheduled to begin on February 5, saying she did not have enough evidence to sustain charges of crimes against humanity facing him. Mr Ruto’s trial will resume on January 13.
The earliest Mr Kenyatta’s trial can start, if the prosecutor finds more witnesses, is May.
Ms Bensouda has also requested for the convention of a status conference in the last week of January to update the judges on the hunt for more witnesses against Mr Kenyatta.
ALLOWED TO PULL OUT
This follows the withdrawal of two key witnesses early this month with the first, identified as P-0012, recanting his testimony after giving conflicting accounts to the prosecutor and the second — P-0011— asking to be allowed to pull out.
At the same time, the Saturday Nation has reliably learnt that away from the Government’s official campaign to have the cases terminated, the Kenyatta family has been carrying out its own diplomatic push to end the case against the President by prevailing on global influence peddlers in the world’s major capitals to bring pressure to bear on the charges and calling in old favours.
A senior diplomat who could not be named for protocol reasons said his country’s top leadership had warmed up to Mr Kenyatta following informal talks with his close family associates in the West. The Kenyattas have vast business interests in Western countries.
The court had planned to treat P-0012, believed to be a Mungiki insider, as an eye witness to corroborate claims on an alleged State House meeting where retaliatory attacks against perceived ODM supporters are said to have been planned. The prosecution alleges that Mr Kenyatta gave the group the go-ahead to attack ODM supporters and that the distribution of police uniforms to the sect was also discussed at the meeting,
The meeting allegedly decided that the police be asked not to interfere with the gangs that attacked ODM supporters in Nakuru and Naivasha.
The witness had previously claimed he had attended the State House meeting, a statement the prosecutor wanted to use to link Mr Kenyatta to the Naivasha and Nakuru attacks.
“In P-0012’s first three interviews, he stated he attended a meeting at Nairobi State House on or about December 30 2007 in which he described the suspect participating in the organisation and funding of violence,” Ms Bensouda said in her application.
“P-0012’s account lay at the heart of the prosecution’s evidence, providing a critical link between the accused and the crimes in Nakuru and Naivasha,” the prosecutor states and documents how the witness contradicted himself in various interviews, raising questions about his credibility.
“P-0012’s fifth and final interview was on December 4, 2013. During that interview P-0012 admitted that he was at the alleged December 30 2007 meeting and had previously lied to the prosecution regarding the event,” Ms Bensouda said.
NO SERIOUS CASE
One of Mr Kenyatta’s lawyers, Mr Evans Monari, described the prosecutor’s action as a confirmation of what the Kenyatta defence team had all along been saying: that there was no serious case against their client.
“It is something she should have done long time ago. She was asked to do so, but she always rejected our plea. We believe this matter is not yet over, but we are going to deal with it conclusively,” he said.
Lead counsel in the Kenyatta case Steven Kay would be submitting the defence’s responses on Bensouda’s application next week, Mr Monari said.
Mr Kenyatta is expected to ask the court to drop the case for lack of evidence.
The second witness, P-0011, has been inconsistent on his stand against the President having requested to be withdrawn and later saying he wanted to reconsider the decision.
Said the prosecutor: “Staff from the prosecution and victims and witnesses unit spoke with P-0011 in December 2013. He volunteered that he may be willing to reconsider his position, but did not make a firm commitment.”
“Having considered the impact of P-0012 recantation of the case as a whole, the prosecution does not consider that it is currently in a position to present a case that satisfies evidentiary standards applicable at trial beyond reasonable doubt,” she added.
Witness P-0011 is also a Mungiki insider, according to a filing by the prosecution on October 28, in which he was listed among the first 10 witnesses to testify alongside two members of the Waki Commission and three crime-based witnesses from Nakuru and Naivasha.
Ms Bensouda had narrated how getting the Mungiki insiders was difficult with the exception of witnesses P-0011 and P-0012.
“The majority refused to engage and the few who did, obfuscated or declined to provide information germane to the investigation,” she had said.
The prosecutor said her office was conducting further investigations to tighten the case to ensure victims of the horrendous events of the post-election violence got justice.
She said the trial judges had been confidentially informed of the steps being taken to strengthen the Kenyatta case for which about 30 witness had been lined up to testify.
She was also hoping for a favourable ruling on her application seeking to have the government compelled to release details on Kenyatta’s assets. Judges Kuniko Ozaki, Robert Fremr and Chile Eboe Osuji are expected to make a decision on the prosecutor’s applications for adjournment and on the assets later.