Nairobi — The International Criminal Court (ICC) has clarified that Trial Judge Christine Van den Wyngaert resigned from hearing Kenya's cases because of workload.
This contradicted widespread reports that the judge resigned because she is not happy with how the prosecution handled the Kenyan cases.
In a separate decision released by the ICC on April 26 it was confirmed that Judge Van den Wyngaert will be replaced on the bench set to hear the two Kenya cases by Judge Robert Fremr with immediate effect.
Judge Van den Wyngaert had applied to stand down from the cases on April 8 due to her heavy workload as she is also currently hearing cases from the Democratic Republic of the Congo, Libya, and the Ivory Coast.
Judges at ICC, in The Hague cleared the way for Kenya's new president, Uhuru Kenyatta, to stand trial but strongly hinted that the case could now suffer further delays.
In a ruling dated April 26, a panel of three judges dismissed an application from Kenyatta's lawyers to either terminate the case or send it back to the pre-trial stage so that judges could determine afresh whether there is enough evidence to merit a full trial.
But following a scathing attack on the prosecution's investigation, judges agreed to provide the defence with more time to conduct its investigations and prepare for trial.
Kenyatta is due to stand trial on July 9 for orchestrating the violence that erupted in the aftermath of Kenya's general election at the end of 2007. Kenya's new deputy president, William Ruto, and a journalist, Joshua Arap Sang also face trial for the unrest in a separate case.
Both cases were due to get underway earlier this month but in a decision taken in early March judges delayed Kenyatta's case until July and that of Ruto and Sang until May 28.
Kenyatta's application to either have his case thrown out completely or sent back to the pre-trial stage stemmed from a number of alleged failings by the prosecution which his lawyers had contended meant that a "fair trial ha[d] been rendered impossible".
Last month, the prosecution was forced to drop its case against a fourth suspect and Kenyatta's co-accused, the former head of Kenya's civil service, Francis Muthaura after a witness admitted lying to the court and prosecutors had no further evidence to support their case.
The prosecution had also relied on evidence given by that anonymous witness- Witness four- when pre-trial judges confirmed the charges against Kenyatta following court hearings in September and October 2011. But before the hearings, prosecutors had failed to disclose an affidavit of Witness four which contained exculpatory evidence relevant to Kenyatta's alleged guilt.
The evidence related to an alleged meeting at Kenya's State House where Kenyatta is accused of planning the post-election violence.
Kenyatta's lawyers had submitted that inconsistencies in Witness four's testimony meant that, like Muthaura, their client also no longer had a case to answer. They submitted that if the pre-trial judges had known about the affidavit and inconsistencies it threw up then they would not have sent the case for full trial.
However the judges ruled that the prosecution's failure to disclose the potentially exculpatory information related to Witness four before the confirmation hearings had not "materially impacted" the decision to confirm the charges.
Rather, the judges concluded that the defence's application "constitute[ed] an impermissible attempt to have the chamber effectively entertain an appeal of the confirmation decision".
In further submissions to the judges, Kenyatta's lawyers had also asserted that the prosecution had added "new and radically altered allegations" to its case since it was confirmed in January 2012.
They submitted that the prosecution had dropped seven of the 12 witnesses it presented at the confirmation hearings. They also pointed to an additional 26 prosecution witnesses that were only interviewed after the charges had been confirmed.
The lawyers argued that what amounted to a re-shaping of the case meant that it should be sent back to the pre-trial judges for confirmation before proceeding to a full trial.
In response to the defence's arguments on new evidence and witnesses in the case, the judges themselves issued a damning assessment of the prosecution's gathering of new evidence and its inclusion of several new witnesses it has only interviewed after the confirmation hearing.
However the judges were not satisfied that the developments "invalidate the confirmation decision and render a fair trial impossible".
The judges pointed out that what was important was that even if the prosecution's evidence had changed, the charges against Kenyatta remained the same as those that were confirmed by the judges in January 2012.
They consequently decided to assess the relevance of any new material as proceedings unfold.
"It is more efficient, expeditious and appropriate for the chamber to address these issues and evaluate the impact on the prosecution's case during the course of the trial rather than refer the case to the pre-trial chamber for what would amount to a "fresh" confirmation," they wrote.
But due to the volume of new evidence held by the prosecution judges decided to give Kenyatta's lawyers more time to conduct their investigations and prepare for trial.
While the July 9 start date still stands, judges asked the defence to file observations on the amount of time that they need to prepare.
The judges put it on record that "as far as [they had] been able to ascertain" at least 24 of the prosecution's 31witnesses were interviewed for the first time after the confirmation hearings.
"In addition, a large quantity of documentary evidence appears to have been collected post-confirmation and to have been disclosed at a late stage," judges noted.
Despite rejecting Kenyatta's bid to have his case thrown out, the judges did not hold back in delivering a harsh warning to the office of the prosecutor, OTP, to get its house in order.
"The appropriate remedy is for the chamber to reprimand the prosecution for its conduct and to require it to conduct a complete review of its case file and certify before this chamber that it has done so in order to ensure that no other materials in its possession that ought to have been disclosed to the Defence, are left undisclosed," read the written decision.
The judges also had some tough words for prosecution on its continued investigations after the charges were confirmed.
"Although there may be no formal preconditions for the prosecutor to continue investigating the same facts and circumstances after they have been confirmed, this is not an unlimited prerogative," judges wrote.
"The prosecution is expected to have largely completed its investigation prior to the confirmation hearing."
In an additional opinion annexed to the judges' decision, Judge Christine Van den Wyngaert delivered a further rebuke of the prosecution and the way it has gone about its investigations in Kenya.
She made particular reference to "the overwhelming number of post-confirmation witnesses and the quantity of post-confirmation documentary evidence" pursued by the prosecution.
"There are serious questions as to whether the prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation," Van den Wyngaert wrote.
"I believe that the facts show that the prosecution had not complied with its obligations at the time when it sought confirmation and that it was still not even remotely ready when the proceedings before this chamber started."
Wyngaert observed that even though the prosecution had faced challenges such as the security of its witnesses it had failed to justify how so many witnesses were interviewed after charges against Kenyatta were confirmed.
"The Prosecution offers no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation. The mere invocation by the Prosecution of generic problems with the security situation in Kenya, without explaining how this situation affected each of the individuals involved, does not adequately justify the extent and tardiness of the post-confirmation investigation," she wrote.
Judie Kaberia is Kenya Coordinator for ReportingKenya.net and Special Projects Reporter at Capital FM in Nairobi.
This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with Capital FM.