International Criminal Court (ICC) prosecutor Fatou Bensouda has now admitted that she has no concrete case against former Head of Civil Service Francis Muthaura over the 2008 post election violence.
Bensouda said on Tuesday that her case is flawed since the main witness against Muthaura - Witness Number 4 - has been dropped.
"Witness 4 was the principal source of evidence that supported the Prosecution's charges against Muthaura at the confirmation stage. There would not have been sufficient evidence to confirm the charges against Muthaura without Witness 4's evidence," Bensouda said in her submission to Trial Chamber V.
She admitted that the witness had been dropped and as such there is no direct evidence against him.
The prosecutor further admitted that her office's failure to alert the Pre-Trial Chamber that the witness was withdrawing could change the Ekaterina Trendafilova-led team's decision to confirm charges against Muthaura.
"Muthaura presents the extremely rare case where it is appropriate to contemplate sending the case back to the Pre-Trial Chamber for reconsideration on the basis of the withheld Affidavit, and to consider the impact that the inconsistent statement might have on the confirmation," she asserted.
The prosecution however disagreed with Muthaura's co-accused Deputy Prime Minister Uhuru Kenyatta explaining that Witness 4 was not the only one whose evidence was relied on to confirm charges at the Pre-Trial stage.
She said there were witnesses 11 and 12 who also gave evidence that Kenyatta allegedly met and funded Mungiki to carry retaliatory attacks in Naivasha during the post election violence.
"Even if the Pre-Trial Chamber would have discarded Witness 4's evidence in its entirety, the remaining evidence cited in the confirmation decision establishes "substantial grounds to believe" that Mr Kenyatta committed the crimes charged. The Defence argument ignores the totality of the evidence relied upon by the Pre-Trial Chamber. For example, there is no mention of the following findings that were based on other evidence, including Witnesses 11 and 12, and not on Witness 4," Bensouda argued.
She said even if the chamber had been aware of the change of Witness 4, the decision to confirm Kenyatta's charges could not have been different.
Bensouda however admitted that the prosecution was wrong for failing to inform the Pre-Trial Chamber that witness 4's evidence could not be relied on due to inconsistencies.
She said the prosecution should have informed the Pre-Trial Chamber about it before it issued a decision that confirmed charges against Kenyatta and Muthaura.
"While the Prosecution acknowledges and regrets its error in not disclosing Witness 4's asylum affidavit prior to confirmation, this error does not undermine the confirmation decision to such an extent that it needs to be referred back to the Pre-Trial Chamber for reconsideration. Had the affidavit been disclosed, it would have at most permitted the Defence to contest the credibility of Witness 4," Bensouda asserted.
Bensouda explained that Witness 4 was dropped for contradictions and also admitting that he lied to the court when he submitted his evidence against Kenyatta.
She said in one paragraph of an affidavit, "Witness 4 discussed the Nairobi Club meeting. He stated that the meeting occurred, but whereas Witness 4's ICC statements explained that he attended the meeting in person, in another paragraph of the affidavit stated that he was told about the meeting by a Mungiki member who claimed to have attended. The inconsistency between paragraph 33 of the affidavit and Witness 4's three ICC statements constitutes information that is subject to disclosure."