The Defence welcomes the withdrawal of the charges against President Uhuru Muigai Kenyatta.
The charges in this case were confirmed on the basis of false evidence. The Prosecution was warned about the falsity of its evidence from the start, but these Defence warnings went unheeded. Insufficient investigations and over-reliance on untested NGO reports crippled this case from its inception. The Prosecution failed to disclose exculpatory evidence at the confirmation of charges hearing, seriously misleading the Court as to the quality of its case.
Having considered all matters before it, the Court has found that the Prosecution’s failure to take appropriate steps to verify the credibility and reliability of its evidence is the ‘direct reason’ for the failure of this case. It has dismissed the unsubstantiated allegations that President Kenyatta has in any way interfered with the collection of evidence or the administration of justice.
There is no evidence whatsoever that Uhuru Kenyatta has been involved in the alleged intimidation of witnesses. This serious allegation has been repeatedly and irresponsibly cast by the Prosecution and the Victims’ Representative without any substantiation, and duly dismissed by the Judges of the Court. The Chamber has instead expressed its concern at evidence that Prosecution witnesses had been involved in a conspiracy to fabricate evidence for financial gain and that Prosecution witnesses had sought to intimidate Defence witnesses.
The Prosecution was itself involved, with a witness who had previously attempted to extort money from the Defence, in an attempt to entrap Uhuru Kenyatta. Conduct such as this betrays the Prosecution’s real attitude to truth and justice.
Similarly, the Prosecution has latterly sought to lay the blame for its deficient case with the Government of Kenya. In its decision on non-compliance, the Trial Chamber called into question the true motives of the Prosecution in pursuing a finding of non-compliance against the Government of Kenya, stating that the Prosecution’s conduct was ‘not reflective of a prosecutorial and investigative body effectively seeking to obtain the requested materials.’ The Chamber continued, ‘If the primary objective of pursuing the cooperation request at this time was to actually obtain the requested materials, the Chamber would have expected to see a greater degree of diligence, persistence and, where necessary, flexibility on the part of the Prosecution.’ In its decision rejecting the Prosecution’s request for an indefinite adjournment, the Chamber called the Prosecution’s conduct disingenuous.
The Prosecution has today released statements that contort the findings of the Court and insult both the judicial process and the Government of the Republic of Kenya. The proper conduct of this case is the duty of the Prosecution and it must accept responsibility for bringing international justice into disrepute.
The Prosecution owes President Kenyatta, the victims of the post-election violence, and the people of Kenya an explanation and an apology for failing to investigate the post-election violence properly and shielding those involved behind its witness protection scheme. Further, the Prosecution owes President Kenyatta an apology for impugning his integrity and relying on the inconsistent testimony of false witnesses.
Steven Kay QC
5th December 2014