ICC prosecutor Fatou Bensouda now says evidence received on record in her case against Deputy President William Ruto and radio journalist Joshua Arap Sang is not sufficient to support the charges.
Ms Bensouda, in an application to ICC judges, wants her team to be allowed to rely and use statements collected and recorded outside the courtroom prior to the case to strengthen its case.
She states in the application that the prosecution is compelled to resort to alternative methods to place before the chamber the relevant and cogent evidence that the witnesses would otherwise have provided.
“The central issue for determination in this request is the admissibility of records of prior interviews of missing and recanting witnesses who succumbed to improper influences,” she says.
She continues: “To establish the truth, the chamber should admit these records into evidence as substantive proof of their contents. Not to do so would deny the chamber the ability to assess the whole of the evidence. It would also reward an attempt to obstruct justice.”
According to the prosecutor, evidence already on record, together with that presented in support of her application, establishes the existence of an organised and effective scheme to persuade prosecution witnesses to withdraw or recant their evidence, through a combination of intimidation and bribery.
“The evidence establishes further that those responsible for this improper interference were, at the very least, acting for the benefit of the accused,” she says in the application which she filed on May 21.
DEPRIVED OF EVIDENCE
She goes on: “As a result, the prosecution has been deprived of a significant portion of the incriminating evidence that it intended to present to Trial Chamber V (A) in support of its charges.”
The application came as the legal representative of the victims of the 2007 post-election, Mr Wilfred Nderitu, said the continued delay by the last witness to testify was frustrating to victims.
“It is really frustrating when witnesses do not testify on the dates when they are supposed to,” he said, referring to the last witness who was scheduled to start testifying in September last year.
Mr Nderitu said victims were looking forward to the next phase of the case to find out whether the defence has a case to answer.
“We would be very happy to see that justice is not delayed any further, everyone is keen to see the case move on as far as the evidence is concerned so that the prosecution does not drag on and on because the more it drags the more it raises credibility questions,” he said.
According to Ms Bensouda, during the course of the prosecution case, no fewer than 16 of the prosecution’s 42 original witnesses have withdrawn their cooperation with the OTP, with most citing threats, intimidation and fears of reprisals.