ICC yesterday sanctioned the amendment of charges against President-elect Uhuru Kenyatta to include use of guns in 2008 Naivasha retaliatory killings.
Pre-trial judge Ekaterina Trendafilova said Chief Prosecutor Fatou Bensouda had availed new evidence backing the claims which had originally been rejected in the January 2012 confirmation of charges decision.
Ekaterina said four witness statements presented by Bensouda reveal that guns such as G3 and more commonly AK47's were used in the killings of members of Luo community in Naivasha.
She rejected Uhuru's application pushing for rejection of gun allegations. Uhuru had claimed that the prosecutor had stretched her investigations too close to trial and long after case had been confirmed.
"The Prosecutor is not barred from continuing her investigations post confirmation of charges hearing when there is a genuine need to pursue certain investigative activities crucial for her case and for the principal goal of determining the truth," the judge said.She said the post-confirmation investigations are however not the rule but exceptions when properly justified.
Trendafilova said Bensouda had properly justified the re-insertion of gun use. She said the prosecutor did so by demonstrating there had been lack of cooperation in Kenya to establish whether guns were actually used and by citing security concerns for her investigators.
Bensouda also demonstrated that witnesses continued to be interfered with even after she kept reporting about these intimidations. Trendafilova also said she was convinced by Bensouda's justification of difficulties she encountered in approaching insider witnesses to provide information on the matter. "This is the core reason weighing in favour of granting the request," the judge said.
In supporting her bid, Bensouda had availed to the judge confidential materials containing excerpts of interview transcripts of the four witnesses.
The gun allegations were contained in the original charges against Uhuru in respect of both Nakuru and Naivasha. In confirming the charges however, pre trial charges rejected the Naivasha bit saying there was no enough evidence to support them.
"The chamber clarifies that the use of weapons and uniforms is established by the evidence only in relation to the events in Nakuru. Conversely, the Chamber does not at this stage of the proceedings find sufficient evidence to substantiate the Prosecutor's allegation that weapons and uniforms were used in Naivasha," the judges had ruled.
While drawing his final charges for the trial against Kenyatta last December, Bensouda reinserted the gun allegations but the trial chamber stopped her. She then went back to the pretrial chamber for authorization.
Yesterday, the prosecution said the decision has no impact on the schedule of the case before the Trial Chamber. Uhuru's trial is set for July 9.