NAIROBI, Kenya, Apr 5 – The International Criminal Court (ICC) has suffered yet another blow after the prosecution confirmed that three key witnesses had refused to testify in the case facing President-elect Uhuru Kenyatta.
According to the prosecution’s submission to the
Trial Chamber, witnesses 2, 9 and 10 have informed the court that they
will not be testifying against Kenyatta.
“Three of the 12 prosecution witnesses relied up on at confirmation
retracted their willingness to testify after the confirmation hearing:
Witnesses 2, 9 and 10. Their provision of formal statements to the
prosecution prior to confirmation indicated their willingness to
testify, Prosecutor Fatou Bensouda indicated.
This means four key witnesses out of the 12 who testified against
Kenyatta before the charges were confirmed including the well-known
witness 4 whose evidence was dropped after he said he had lied to the
court have dropped out.
At the start of the case there were about 30 prosecution witnesses in the Kenyatta case.
The prosecution will now rely on evidence of the remaining eight key
witnesses and others to hold onto the charges levelled against Kenyatta.
According to Bensouda, the three witnesses gave indications last year
that they would not be testifying at the trial stage as earlier
“When the prosecution contacted witness 2 on November 3, 2012 to
confirm his availability to testify, he said he was rethinking his
decision. The prosecution made several attempts to persuade witness 2 to
testify, either as a prosecution or as a court witness, but on November
20, 2012, he informed the prosecution that his decision not to testify
was final,” Bensouda explained in reference to witness 2.
Former Head of Civil Service Francis Muthaura had his charges dropped
as the prosecution said the Pre-Trial Chamber relied on evidence given
by witness 4 who is no longer on the list of witnesses.
The prosecution said although part of the evidence used to confirm
Kenyatta’s charges was from witness 4, evidence from witnesses 11, 12
and 6 was also relied upon by the Pre-Trial Chamber.
The prosecutor explained; “Its findings were based upon the evidence
of Witnesses 11, 12 and 6. The Pre-Trial Chamber found that their
evidence “established (the 30 December State House meeting) to the
requisite threshold” of “substantial grounds”. This finding is not
affected in any way by the post-confirmation revelations with respect to
When the prosecutor dropped charges against Muthaura she told the
court that witnesses had been killed, intimidated and that the
government of Kenya had refused to cooperate.
However critics have urged the prosecution make use of the provisions
in the Rome Statute which gives it the power to sanction those who have
intimidated witnesses if it has evidence to support its allegations.
The prosecution during the status conference confirmed that some
witnesses had dropped out of the two Kenyan cases against Kenyatta, his
deputy William Ruto and former media personality Joshua arap Sang.
The Ruto-Sang case has 41 prosecution witnesses, but five of them have been dropped.