PROSECUTOR V. FRANCIS MUTHAURA AND UHURU KENYATTA
Contents
Contents
Background of the Case
In
2007 when the Republic of Kenya went to a general election the main opposition
party in Kenya, the Orange Democratic
Movement (ODM), was showing a lead but during the closing hours of vote
counting, the Party of National Unity
(PNU) was reported to have won the election. The opposition levelled
allegations of election fraud which led to general chaos in Kenya which became
entangled in post-election violence. It is alleged by the Prosecutor of the International Criminal Court (ICC) that
supporters of the ODM were organised
to attack civilians believed to have voted for the PNU. It is the Prosecution’s case that the PNU retaliated against those people who were believed to belong to
the ODM opposition wing.
After
the Prosecutor of the ICC had for
the first time initiated charges proprio
motu (on his own initiative), on 31 March 2010 the Pre-Trial Chamber II of the ICC authorised, by a majority, the
commencement of an investigation of the alleged crimes against humanity which
marred Kenya after the election in 2007. It has to be noted that when the
Prosecutor initiates charges proprio motu,
this requires authorisation from the Pre-Trial
Chamber. The Prosecutor had
initially identified six Kenyan suspects but the Pre-Trial Chamber declined to confirm charges against Mohammed
Hussein Ali and Henry Kiprono Kosgey. The remaining four suspects’ charges were
confirmed in two separate cases namely The
Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta and, The Prosecutor v. William Samoei Ruto and
Joshua Arap Sang. This series follows the case of The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta.
The decision on the Confirmation
of Charges
a) The Application by the Government
of the Republic of Kenya to have the case against the suspects inadmissible.
At
the time the decision was made, the court had received over 280 filings and
issued about 90 decisions. Prior to the confirmation of charges and on 31 March 2011, the Government of Kenya filed an application
under Article 19 of the ICC Statute
which requested the Chamber to find that the case against the suspects as
being inadmissible and that Kenya should have jurisdiction over the case. The
Government of the Republic of Kenya also filed 22 annexes of additional material
of over 900 pages which sought to reiterate its initial challenge.
The
Chamber issued the decision on the said challenge wherein it held that the case
was admissible on 30 May 2011. This
decision was confirmed by the Appeals Chamber.
b) Participation of Victims in the
Confirmation of Charges.
The
Chamber received and assessed 249 victims’ applications to participate in proceedings
and then issued a decision admitting 233 victims as participants at the
confirmation of charges hearing. It further appointed a Common Legal Representative
for the victims and went on to specify the scope of participatory rights of
victim participants.
c) The issue of witnesses for the
Confirmation of Charges Hearing
Whilst
the Prosecutor had chosen not to call live witnesses for the confirmation
hearing, the Defence had intended to call 24 live witnesses at the confirmation
hearing. After a consideration of the limited purpose and scope of the
confirmation proceedings, Defence was instructed to call a maximum of two
witnesses per suspect at the hearing.
d) The confirmation of charges
hearing
The
hearing started on 21 September 2011 and ended on 5 October 2011.
Confirmation and Referral to
Trial
On 29 March 2012
the Court referred the matter to
Trial Chamber V for trial. The initial trial date was 11 April 2013.
The ICC later rescheduled the trial for 09 July 2013.
The Issue of Witness 4 and Referral
Back to the Pre-Trial Chamber
Prior
to the Trial, the Defence has requested Trial
Chamber V to refer the matter back to the Pre-Trial Chamber in light of
Witness 4 having withdrawn his testimony to the court. In a statement, he
testified told the court that he had lied on having attending meeting at State
House where the accused allegedly planned the attacks on ODM supporters. The Defence wants Trial Chamber V to refer the matter back to the Pre-Trial Chamber for consideration of
the effect of such withdrawal in respect of the confirmation of charges. The
Prosecutor opposes this saying she has evidence of bribery of the witness. Trial Chamber V is set to rule on this
in due course.
Witness Preparation Protocol
On 13 August 2012, the Prosecution
requested the TC to adopt a regime allowing more extensive witness preparation
than in former cases, including Lubanga and Bemba.
In these cases, the Chambers had prohibited the parties from undertaking
substantive preparation of witnesses for trial to prevent rehearsals of
in-court testimony. The prosecution requested the Chamber to enable parties
calling a witness to meet with the witness in The Hague prior to testimony to
review the topics likely to be covered in cross-examination, review the
witnesses’ prior statements and show potential exhibits to the witness.
The prosecution, bringing
forward supporting practice of the ad hoc tribunals, argued that this would
help the accuracy of witness testimonies, expedite the proceedings and increase
witness confidence. The defence opposed the
prosecution's motion on several grounds, namely inter alia that the interests of legal certainty
and of like cases being treated alike militate in favour of the established
jurisprudence of the ICC prohibiting substantive witness preparation; and that
through the proposed Protocol may allow the prosecution to coach witnesses
during the trial proceedings. On 2
January 2013, Trial Chamber V broke
from past practice in other ICC cases, and determined that witness preparation
shall be permitted in both Kenyan cases as requested by the prosecution.[1]
The Accused and the Charges
1.
Uhuru
Muigai Kenyatta
Elected the President
of the Republic of Kenya on
The 9th of March 2013, Uhuru is the son of Kenya’s
First President, Jomo
Kenyatta. At the time the crimes
were committed, he
was a senior member of the PNU
Party. He also served
as Deputy Prime Minister in the
Coalition government
formed after the chaotic 2007
General
election. He is charged as an indirect co-perpetrator for crimes against
humanity under Articles 7 (1) (a) and Articles 25 (3) (a) of the Rome Statute.
He is faced with charges of murder constituting a crime against humanity,
deportation or forcible transfer of population, rape and other forms of sexual
violence constituting a crime against humanity, other inhumane acts, and
persecution in or around Nakuru and Naivasha. He is alleged to have made
contributions to the general plan to target perceived ODM supporters.
2.
Francis Kirimi Muthaura
The Defence Counsel
Uhuru
Kenyatta is being represented by :
Steven
is an International Criminal Lawyer who was called to the bar in 1977. He
became a Queen’s Counsel in 1997. He was appointed to represent Slobodan
Milosevic at his war crimes trial. He is being assisted by Gillian Higgins.
Gillian was called to the bar in 1997. She is an International Criminal Lawyer
who has appeared in the International Criminal Tribunal for the Former
Yugoslavia co-defending Slobodan Milosevic and Ivan Cermak.
|
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Karim is
a British Lawyer specialising in International
Criminal
Law and International Human Rights Law. He
was
called to the bar in 1992. He has served as defence
Counsel
before Special Courts in East Timor, Sierra
Leone,
Yugoslavia and Rwanda. He is being assisted by
Essa
Fal, Kennedy Ogetto and Shyamala Alagendra.
The
withdrawal of charges against Francis Kirimi Muthaura
On 11 March
2013 the Prosecutor issues a statement on the the Notice to withdraw charges
against Mr. Muthaura:
Ladies
and Gentleman, People of Kenya:
Firstly,
I wish to sincerely commend all Kenyans for their commitment to maintaning
peace during this election.
I wish
to inform you, that today I filed a notice to the Judges to withdraw charges
against Mr. Francis Kirimi Muthaura.
I have done so after carefully
considering all the evidence available to me at this time. It is my duty to proceed only when I believe
that there is a reasonable prospect of conviction at trial. If not, then it is my responsibility as
Prosecutor to take the decision to withdraw charges.
This is
an exceptional decision. I did not take it lightly, but I believe it is the
right thing to do.
I
explained to the Judges the reasons for my decision, specifically, the severe
challenges my Office has faced in our investigation of Mr. Muthaura;
·
the
fact that 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.
·
the
disappointing fact that the Government of Kenya failed to provide my Office
with important evidence, and failed to facilitate our access to critical
witnesses who may have shed light on the Muthaura case.
·
the
fact that we have decided to drop the key witness [Witness 4] against Mr.
Muthaura after this witness recanted a crucial part of his evidence, and
admitted to us that he had accepted bribes.
Let me
be absolutely clear on one point – this decision applies only to Mr. Muthaura.
It does not apply to any other case.
My
decision today is based only on the specific facts of the case against Mr.
Muthaura, and not on any other consideration. While we are all aware of
political developments in Kenya, these have no influence, at all, on the
decisions that I make as Prosecutor of the International Criminal Court. As I have consistently underscored, the
International Criminal Court is a judicial institution.
In
conclusion, let me remind you all of my unwavering commitment to justice for
the victims of the 2007-2008 post election violence. The real victims of the terrible violence in
Kenya five years ago are the men, women and children, who were killed, injured,
raped, or forcibly displaced from their homes- and whose voices must not be
forgotten.
I will
not forget them.[2]
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