Nairobi — International Criminal Court Prosecutor Fatou Bensouda maintains that the decision to drop charges against former head of Civil Service Francis Muthaura has no impact on her case against President-elect Uhuru Kenyatta.
In her submission to the court, she explained that withdrawal of charges against one alleged indirect co-perpetrator does not automatically affect the other accused, so Kenyatta's case remains.
She says according to the Rome Statute: "Article 25 (3) demonstrates that the legal status of one alleged indirect co-perpetrator has no bearing on the guilt or innocence of another alleged co-perpetrator."
"In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the court if that person: (a) commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible."
She said although the two were charged jointly, it did not imply that both have to be criminally responsible.
Bensouda further explained that one co-accused can be found not to be criminally responsible while the other is found responsible despite being jointly co-accused.
"Logic dictates that the withdrawal of charges against one indirect co-perpetrator does not have an automatic knock-on effect with the respect to the charges against another alleged indirect co-perpetrator. The fact that multiple individuals are charged in the same Document Containing Charges under the same mode of liability does not require lock-step decisions to be taken with respect to each co-accused," she explained.
She said even in cases where many are accused of participating in the same criminal act, verdicts are issued differently for the individual accused based on the evidence implicating them.
The prosecutor argued it was not the first time that charges had been dropped for one of persons who are jointly accused.
She gave the example of former Police Commissioner Hussein Ali and former Tinderet MP Henry Kosgey whose charges were dropped even though they were jointly accused with Kenyatta, Muthaura; and deputy President-elect William Ruto and former presenter Joshua arap Sang respectively.
She also cited the case of Thomas Lubanga who was convicted even though other perpetrators who were jointly accused with him were not.
Bensouda said the charges against Muthaura and Kenyatta including their roles in the post-election violence were different.
She said: "Whereas Kenyatta was allegedly in charge of the provision of financial and logistical support to the direct perpetrators, Muthaura allegedly secured the support of the Mungiki and directed the latter to commit the crimes in Nakuru and Naivasha,", as well as "provided institutional support for the execution of the crimes on behalf of the PNU Coalition."
The prosecutor on Monday filed a motion asking the court to drop all charges against Muthaura after evidence and the sole witnesses against Muthaura were withdrawn.
Kenyatta's defence team has argued that since the two were jointly accused, the charges against their client should also be dropped.
The team also complained over dishonest witnesses and dismissal of many others who gave evidence that led to the confirmation of charges.
Kenyatta who is the only accused person in Kenya Case I is set to stand trial on July 9 while Ruto and Sang have their date with the court on May 28.