Bensouda returns Muthaura to Pretrial Court
ICC Chief Prosecutor Fatou Bensouda yesterday confirmed that she had dropped 'Witness 4' but she simultaneously alleged that he had been bribed by "representatives" of Deputy Prime Minister Uhuru Kenyatta.
Bensouda agreed that the case against Uhuru's co-accused Francis Muthaura should be returned to the pretrial chamber as Witness 4 was the only direct witness against him. But she insisted that the case against Uhuru must proceed to full trial.
On Wednesday Bensouda said she would not object if the start date of the Kenyan trials be changed to August from the present April date.
Bensouda told trial judges yesterday that the controversial witness had confessed to accepting money last May from the alleged Uhuru emissaries to withdraw his testimony.
"Witness 4 revealed in the May 2012 interview that he had been offered, and accepted, money from individuals holding themselves out as representatives of the Accused to withdraw his testimony," she said.
"The witness provided emails and bank records that confirmed the bribery scheme. In light of these cumulative revelations, the Prosecution considers that it is not useful to call him as a witness," Bensouda said.
In his original statements, the witness said he attended meetings on November 26, 2007 at State House; on November 17, 2007 with Uhuru at Yaya Centre; and on January 3, 2008 at the Nairobi Club meeting with Uhuru and Muthaura.
Bensouda said that she still has Witnesses 11 and 12 whose evidence helped the Pre-Trial Chamber to confirm charges of crimes against humanity against Uhuru and Muthaura.
"Even if the pretrial 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," she said.
According to Bensouda, Witnesses 11 and 12 link Uhuru to the December 30, 2007 State House meeting; the pay-off to secure Maina Njenga's approval for Mungiki to carry out retaliatory attacks; and the funding of the coordinators of the Nakuru and Naivasha violence.
The two witnesses gave evidence that Uhuru instructed the mobilization of attackers and paid an unnamed Mungiki leader to gather a group of Mungiki to replace deserters.
"The findings above go directly to Mr Kenyatta's alleged role in the common plan and the retaliatory attacks that sprang from it. Together, they are more than sufficient to support confirmation of the charges," Bensouda said.
Bensouda admitted a serious error in failing to disclose some exculpatory information in a 28 page affidavit by Witness 4 on September 27, 2010.
"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," she said.
"The prosecution acknowledges that it erred in not disclosing the affidavit at the pre-trial stage. With the benefit of hindsight, the affidavit could and should have been disclosed to the defence prior to the confirmation hearing, with redactions," she said.
The prosecutor conceded that she may not have a concrete case against Muthaura. "There would not have been sufficient evidence to confirm the charges against Muthaura without Witness 4's evidence," Bensouda said.
"If Muthaura's case is collapsing, is that not an indication even mine will go nowhere?" Uhuru said yesterday in Meru. Uhuru said Bensouda had not opposed his application for postponement of the trial date and Muthaura's plea for his case to be returned to the Pre rial chamber is indicative of a collapsing case.
Uhuru's lawyer Steven Kay said Uhuru and Muthaura are defendants in the same case and therefore Bensouda cannot separate them. "If the Prosecutor has found the case against Muthaura so weak that it must be returned to the pretrial chamber for re-examination, so it must be done for Mr Kenyatta. The two have accused of organizing a "common plan". Yet she has rejected the same request from my client," Kay said.
He said there is no conceivable legal reason why Uhuru's case should now proceed unless it was for political reasons related to the election.
Witness 4 is presumed to be a former member of the Mungiki. He testified before the Waki Commission whose evidence was later handed over to the ICC in 2009. In early 2008, the witness fled to Swaziland.