ICC's Bensouda drops three witnesses in Uhuru case

The ICC prosecutor has dropped three witnesses in her case against President Uhuru Kenyatta, narrowing her evidence in the charges that he is facing at The Hague.

Ms Fatou Bensouda, the International Criminal Court (ICC) prosecutor, has also been allowed to challenge a ruling allowing Deputy President William Ruto to skip some sessions of the ICC Trial Chamber.

Ms Bensouda wrote to Trial Chamber judges Kuniko Ozaki, Robert Fremr and Chile Eboe-Osuji to inform them that she had dropped Witnesses 5 and 426 on grounds that they were no longer willing to testify against Mr Kenyatta.

She also dropped Witness 334, saying, the evidence of the individual was no longer required to prove that Mr Kenyatta committed crimes against humanity during the 2007/8 post-poll violence.

“The prosecution hereby notifies the Chamber of the withdrawal of three witnesses from its list of witnesses to be relied on at trial,” she said.

Mr Kenyatta’s trial starts on November 12, while that of Mr Ruto starts earlier — on September 10.

Ms Bensouda told the judges that she is likely to seek their permission to replace the witnesses in light of ongoing investigations.

In March, Ms Bensouda withdrew charges against former Head of Civil Service Francis Muthaura who was President Kenyatta’s co-accused after key witnesses declined to give evidence. She said that some of the witnesses had been compromised while others had died before they could testify.

At the time, Ms Bensouda said: “We have no evidence against Muthaura. There are other reasons… Several people who may have provided important evidence regarding Mr Muthaura’s actions have died, while others are too afraid to testify for the prosecution. Other witnesses refused to speak with prosecution.”

In her latest filing on Tuesday, Ms Bensouda said Witnesses 5 and 426 had refused to testify against Mr Kenyatta due to the risk it carried. She said Witness 5 had expressed fear for his life and cited three incidents, which were heavily redacted in the filing, to justify his change of heart. He said the incidents occurred on April 2010, December 2011 and March 2013.

“There has been public speculation about Witness 5’s co-operation with the Court, despite the fact that the prosecution has designated his identity as confidential. In sum, it appears that Witness 5’s concerns for his security have become too great for him to bear, and he has decided to withdraw,” the prosecutor said.

Similarly, Ms Bensouda said Witness 426 was no longer willing to testify for fear of his life and the danger it poses to his family.

“The Prosecution has held discussions with Witness 426 to determine whether any measures could be taken to mitigate his concerns and secure his attendance at trial. These talks were unsuccessful and Witness 426 maintained that he was not willing to testify,” she said.

On Witness 334, Ms Bensouda said his evidence was no longer required to prove the case against Mr Kenyatta and she had decided to withdraw his evidence “in the interests of judicial economy”.

In Mr Ruto’s case, judges Olga Herrera Carbuccia and Robert Fremr allowed Ms Bensouda to appeal against their ruling granting the Deputy President absence from part of the trial proceedings except the opening and closing statements for all players. Judge Eboe-Osuji dissented.