The withdrawal of another key witness in the International Criminal Court (ICC) case against Deputy President William Ruto has turned the spotlight on the Prosecution, raising questions on how it will manage to sustain trials in the present circumstances.
The performance of the Prosecutor is expected to come under scrutiny during a status conference Tuesday at The Hague.
Victims of the 2008 violence have placed much faith in the ICC, but recent events continue to dampen their spirits.
Charges have been dropped against three of the six initial suspects because of the difficulty of building cases.
And even as the ICC prosecutor Fatou Bensouda continues to put on a brave face with declarations that she has strong evidence, the withdrawal of key witnesses would appear to weaken her case ahead of Mr Ruto’s trial expected later this year.
So far, the prosecution has lost 13 key witnesses in the twin cases involving President Uhuru Kenyatta, Mr Ruto and radio journalist Joshua Sang. Mr Kenyatta’ co-accused, former head of Public Service Francis Muthaura, has been discharged.
Through his lawyer Paul Gicheru, the witness who had told the prosecutor that he attended meetings to plan violence at Mr Ruto’s home now says he lied. He says he has never visited any of Mr Ruto’s homes.
“I would like to solemnly swear that all the allegations that are attributed to me in the said interviews and statements are not true.
“To the best of my knowledge the 2007/2008 violence was spontaneous and was not planned or financed by anybody in Rift Valley including Henry Kosgey, Joshua arap Sang and William Ruto,” the witness said in a February 19, 2013 affidavit.
Developments in Case One of Mr Ruto and Mr Sang have not made things any rosier for the prosecutor due to the unwillingness of some witnesses to co-operate with the office.
The big question now is: is the Kenyan case at the ICC collapsing?
There are also questions whether the Prosecution conducted credible investigations as required by the Rome Statute under which the court was founded.
One of the trial judges reportedly withdrew from the case last month citing prosecution misconduct, although the court leadership was quick to deny that line.
Before pulling out, Lady Justice Christine Van den Wyngaert had expressed reservations about the conduct of the prosecution.
“I am of the view that there are serious questions as to whether the prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation,” she said in the decision discharging Mr Muthaura. She then asked to be released because of her work load. The presidency accepted, but court leadership concealed her other reasons for the move in the document released to the public.
After his clearance, Mr Muthaura also had very unkind words for the prosecution.
“To the prosecutor I say, please be fair – please investigate your cases – please look for the truth and make sure that your staff live by this guiding principle.”
Ms Bensouda has accused some individuals of bribing her witnesses with the aim of killing the case. She has not named anyone yet.
Matters are further complicated by the fact that two of the accused now occupy high posts in the Kenyan government, a situation that could discourage participation of witnesses.
It was the withdrawal of key Witness Four which led to clearance of Mr Muthaura.
This was the witness who claimed to have been present at crucial meetings in State House and the Nairobi Club where Mr Muthaura and his co-accused, President Kenyatta, allegedly planned the 2007/8 violence.
He later confessed that he had lied, and the prosecution is on the spot for concealing the revelation.
President Kenyatta also wants charges against him dropped over the withdrawal of Witness Four’s testimony.
The question being asked is why the Prosecution chose to withdraw just the case against Mr Muthaura when the factual and legal basis for the case against him and Mr Kenyatta was the same.
The same question was posed when the Pre-Trial Chamber dismissed the case against General (rtd) Hussein Ali who the prosecution had argued had been in conspiracy with Mr Muthaura.
In a recent decision of the Trial Chamber handling the case against President Kenyatta, the judges reprimanded the prosecution for failing to disclose key exonerating evidence during the confirmation of charges hearing and for failing to conduct a full and effective investigation before presenting its case for confirmation
The judges fell short of altogether dismissing the case against Mr Kenyatta, instead advising his lawyers to seek other remedies during trial including challenging the evidence that the prosecutor had collected after the confirmation of the case. The prosecution says it had collected more evidence of President Kenyatta’s involvement in the violence after the confirmation of charges hearing.
Ms Bensouda maintains that despite the withdrawal of the testimony, she has sufficient evidence of Mr Kenyatta’s alleged participation in violence planning meetings at Blue Post Hotel in Thika and Nairobi’s Yaya Centre. But experts say the amount of post-confirmation evidence is overwhelming and unprecedented and violates the Court’s own rules and case law, which require that save for very exceptional circumstances, all prosecution investigations should be conducted before the confirmation hearings.