By John Odyek
A Belgium judge who was one of the judges handling the case against Kenyan President Uhuru Kenyatta and his deputy William Ruto at the International Criminal Court (ICC) has withdrawn.
The ICC president Judge Sang-Hyun Song has now replaced Belgium Judge Van den Wyngaert with Judge Robert Fremr from Czech Republic. Questions remain how this will affect the case.
Belgium Judge Van den Wyngaert maintained that the Prosecution failed to properly investigate the case against President Uhuru Kenyatta prior to confirmation.
“I am of the view there are serious questions as to whether the Prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation,” Wyngaert stated.
She observed that the Prosecution had violated its obligation under The Rome Statue to fully respect the rights of the accused by what she termed as: “the extremely late and piecemeal disclosure of an inordinate amount of totally new evidence”
“There can be no excuse for the Prosecution’s negligent attitude towards verifying trustworthiness of its evidence. In particular, the incidents relating to Witness 4 are clearly indicative of a negligent attitude towards verifying the reliability of central evidence in the Prosecution’s case,” she said.
Wyngaert faulted the prosecution for what she termed overwhelming number of witnesses and quality of documentary evidence obtained after the confirmation of charges.
The development came even as the Trial Chamber bench rejected a request by President Uhuru to refer his case back to the Pre-Trial Chamber. Uhuru had petitioned the judges to terminate his case or refer it back for reconsideration arguing the confirmation decision was based on false testimony.
Uhuru had also argued his case could not stand after ICC Prosecutor Fatou Bensouda withdrew the case against former Civil Service Chief Francis Muthaura, arguing they were charged as indirect co-perpetrators.
But in the 57 page decisions, the judges said they did not have the jurisdiction to refer the case to the Pre-Trial Chamber.
They maintained only the Pre-Trial Chamber can entertain such a request for leave to appeal the Confirmation Decision, and that only the Appeals Chamber that can hear an appeal of the Confirmation Decision. However, an appeal challenging the confirmation decision against Uhuru, his Deputy William Ruto and radio Journalist Joshua arap Sang had been dismissed last year.
“The Statute is clear on the separation of powers between the various Chambers in this regard: only the Pre-Trial Chamber can entertain a request for leave to appeal the Confirmation Decision, and it is only the Appeals Chamber that can hear an appeal of the Confirmation Decision,” the judges ruled. But they reprimanded the prosecution for failing to timely disclose the affidavit to the defence and directed them to review the case and notify the Chamber by May 21.
Kenyatta was indicted on 8 March 2011 on five counts of crimes against humanity. Kenyatta, as a supporter of Kenyan President Mwai Kibaki, is alleged to have planned, financed, and coordinated the violence perpetrated against the perceived supporters of the Orange Democratic Movement, the political party of the President's rival, during post-election violence from 27 December 2007 to 29 February 2008.
Kenyatta is alleged to have "had control over the Mungiki organization" and directed it to conduct murders, deportations, rapes and other forms of sexual violence, persecutions, and other inhumane acts against civilians in the towns of Kibera, Kisumu, Naivasha, and Nakuru. Kenyatta was summoned to appear before the Court on 8 April 2011 and the confirmation of charges hearing was held from 21 September 2011 to 5 October 2011. All the charges against Kenyatta were confirmed by Pre-Trial Chamber II on 23 January 2012.
Ruto was indicted on 8 March 2011 on four counts of crimes against humanity. He is alleged to be the leader of an ad hoc organization created by members of the Kalenjin ethnic group which was created to perpetrate violence on behalf of the Orange Democratic Movement (ODM), the political party of presidential candidate Raila Odinga, during post-election violence in December 2007 and January 2008. On 1 August 2011, the charges were reduced to three counts.
Ruto, as the a top leader in the ad hoc Kalenjin organization, directed Kalenjin youths to target civilians of the Kikuyu, Kamba and Kisii ethnic groups, which were perceived to be supporters of the Party of National Unity, the political party of Odinga's opponent during the election. Ruto is alleged to be criminally responsible for the murder, deportation, torture, and persecution of civilians in the towns of Kapsabet, Nandi Hills, Turbo, the greater Eldoret area. Ruto first appeared before the Court, voluntarily, on 7 April 2011. All the charges against Ruto were confirmed by Pre-Trial Chamber II on 23 January 2012. E