On 19 December 2013, the International Criminal Court’s (ICC) Chief Prosecutor, Fatou Bensouda, issued the following statement:
“Today, I filed an application with the Judges requesting an adjournment of the provisional trial date in the case of the Prosecutor v. Uhuru Muigai Kenyatta (ICC-01/09-02/11). My decision is based solely on the specific facts of this case devoid of extraneous considerations. As Prosecutor, I have consistently stated my actions and decisions are at all times strictly guided by the evidence in accordance with the Rome Statute legal framework. This recent decision is no different. It is my professional duty to react, and to take the necessary decisions when the state of the evidence changes, as it has in this case.
In the last two months, one of the Prosecution’s key witnesses in the case against Mr. Kenyatta has indicated that he is no longer willing to testify. More recently, on 4 December 2013, a key second witness in the case confessed to giving false evidence regarding a critical event in the Prosecution’s case. This witness has now been withdrawn from the Prosecution witness list. Having carefully considered my evidence and the impact of the two withdrawals, I have come to the conclusion that currently the case against Mr. Kenyatta does not satisfy the high evidentiary standards required at trial. I therefore need time to complete efforts to obtain additional evidence, and to consider whether such evidence will enable my Office to fully meet the evidentiary threshold required at trial.
Our pursuit of justice for the victims of the 2007-2008 post-election violence in Kenya has faced many challenges. Notwithstanding, my commitment and that of my staff to the pursuit of justice without fear or favour has remained firm. It is precisely because of our dedication and sense of responsibility to the victims that I have asked the Judges presiding over the case for more time to undertake all remaining steps possible to strengthen the case to ensure justice for the victims.
To the people of Kenya, my decision to apply for an adjournment today was not taken lightly and I have explained fully to the Judges the reasons for my exceptional decision. I have and will continue to do all that I can to realise justice for the victims of the 2007-2008 post-election violence.”
On 20 December 2013, Bensouda filed a motion with ICC Trial Chamber V(b) entitled “Notification of the removal of a witness from the Prosecution’s witness list and application for an adjournment of the provisional trial date”. In the motion, the Prosecution states:
“P-0012 recently admitted that he provided false evidence regarding the event at the heart of the Prosecution’s case against the Accused. The Prosecution no longer intends to call P-0012 as a witness. Separately, P-0011 has informed the Prosecution that he is no longer willing to testify at trial.
In light of these developments, the Prosecution considers that it has insufficient evidence to proceed to trial at this stage. The Prosecution therefore seeks an adjournment of the provisional trial date for three months, which will enable it to undertake additional investigative steps – including those not previously open to the Prosecution – to determine whether a case can be presented to the Chamber that establishes the Accused’s guilt beyond reasonable doubt. There is potential for these investigative steps to produce evidence shedding light on key allegations in this case. The Prosecution believes they must be pursued in accordance with its Article 54(1) duties, to ensure that every effort has been made to hold to account those most responsible for the crimes committed during the 2007- 2008 post-election violence (“PEV”), and to seek justice on behalf of the victims, who continue to wait for their day in court, almost six years after the crimes were committed.”
The Prosecution also requested that “the Chamber convene a status conference in the last week of January 2014 in which the Prosecution will update the Chamber on the progress of the investigative steps, and answer any questions the Chamber may have.”
In accordance with the Regulations of the Court, the Defence is entitled to respond to the Prosecution’s request for an adjournment. The Regulations stipulate that a party has 21 full days to submit a response.