Bensouda under fire for dropping Muthaura case

                                                                        ICC chief prosecutor Fatou Bensouda has been criticized for promoting impunity by dropping the case against former head of the civil service Francis Muthaura.
Bensouda withdrew the charges against Muthaura on the grounds that witnesses expected to testify in the case had either been killed, intimidated or coerced to recant.
 One of the trial judge Chile Eboe-Osuji said if there was evidence to the witness killings, coercion and intimidation, the right thing for Bensouda to do was to institute administration of justice charges against the perpetrators, not drop the case.
 “In my view, where there is credible evidence connecting a defendant to the sort of conduct, the consequence should not be withdrawal of the charges against him. Lest, other defendants begin to view those conducts as passports to impunity,” Eboe-Osuji said in his 'separate concurring opinion' on the judges decision to withdraw the charges against Muthaura which was released by the court last Friday.
 Bensouda had told the judges that witnesses who may have been able to provide evidence concerning Muthaura's role in the events of 2007 and 2008 had either been killed or had died since those events.
 She said other witnesses refused to speak with the prosecution and that the government of Kenya had frustrated her investigations into Muthaura’s exact role in the violence.
 “It came to light after the confirmation hearing that a critical witness for the prosecution against Muthaura had recanted part of his incriminating evidence after receiving bribes. In the circumstances, we felt we could no longer present this witness as a reliable witness and dropped him from our witness list,” Bensouda told the judges.
 Judge Eboe-Osuji said while in principle the court could not compel the prosecutor to proceed to trial with a case which was insufficiently supported by the evidence available to her, he found it 'very troubling' that the prosecutor was seeking to justify her lack of evidence arising from the killing of witnesses, coercion and bribery.
Last month, Bensouda had claimed that representatives of either Muthaura or his former co-accused Uhuru Kenyatta had bribed a crucial witness whose exit precipitated the dropping of the case.
“Witness 4 revealed in the May 2012 interview that he had been offered, and accepted, money from individuals holding themselves out as representatives of the accused to withdraw his testimony,"Bensouda said last month when she announced her decision to drop the testimony of James Maina Kabutu.
The witness provided emails and bank records that confirmed the bribery scheme. "In light of these cumulative revelations, the Prosecution considers that it is not useful to call him as a witness,” Bensouda said.
Muthaura’s lawyer Karim Khan has vehemently objected to the claims of witness intimidation, killings or coercion and dismissed them as a "smokescreen' during a press conference held by Muthaura on March 14.
 “This is smokescreen from the inescapable reality that the case collapsed from within. The rotten underbelly of this case is a lying witness, just one witness whom—in the prosecutor’s own words, not mine—was a liar.”
He said if it were true that the accused bribed the witnesses, a reasonable prosecutor would prosecute all those involved in the act. In his Friday statement, Judge Eboe-Osuji appeared to concur with this view when he said Bensouda had not informed the court of these events and the supporting evidence when she applied to drop the case against Muthaura.
 Article 70 of the Rome Statute criminalizes giving of intentional false testimony, corrupting, influencing and intimidating witnesses, retaliating against ICC officials and soliciting bribes from them. Anyone convicted faces a prison term not exceeding five years or a fine.
Kabetu has not been charged and neither has Muthaura nor Uhuru. Yet another witness—Samuel Kimeli Kosgey— who was supposed to testify against deputy president-elect William Ruto recanted his testimony in a similar manner and said he was no longer interested in being a witness now or in the future.
Kosgey —otherwise known as OTP 8— claimed that he had been intimidated into exaggerating some of his responses to the questions by the Office of the Prosecutor.
 He denied he had visited the homes of Ruto or his co-accused Joshua wrap Sang as well as attending a meeting at "Molo milk plant' in Gilgil where the planning for the post election violence was discussed.
Kosgey also denied attending an ODM planning meeting held in Kapkatet and which Ruto is said to have attended. "I was a PNU member and the chairman of the party for the Mosop constituency. How could a known PNU member attend ODM political rallies or meeting to plan chaos?” he said in his statement withdrawing from the case.
He claimed these are just a 'few instances' of the false nature of the allegations that the ICC had attributed to him and which the ICC prosecution had procured before hand and wanted him to 'support."
The allegations were strenuously denied by Bensouda's office through trial attorney Cynthia Tai who wrote to Kimeli’s lawyer Paul Gicheru asking for a meeting last week.
Gicheru rejected her requested for a meeting saying his previous letters and affidavits to Bensouda's office were “self explanatory and we do not therefore have anything useful to add.”
-THE STAR