One of the key battlegrounds in the Kenyatta/Muthaura case is the serious allegations by the defence teams that the Prosecutor was at best incompetent and at worst misled the Pre-Trial Chamber as to the sufficiency of evidence. The saga over OTP-4, the witness who recanted (if you believe the defence) or was bribed by associates of the accused (if you believe the prosecutor), brought this issue to the foreground last month. Although in the end the Prosecutor conceded that the case against Muthaura could not continue after the failure of OTP-4’s evidence, the accusations of fraud made against the Prosecutor have not been withdrawn as far as I can tell.
These allegations, though unproven, raise the question of what remedies are available in the event that investigations reveal Prosecutorial misconduct. The defence teams tend to argue for an absolutist approach: dismissal of charges, acquittal, re-hearing of the case or full compensation. This position is understandable given that Defence counsel are protecting their clients’ interests. However, a recent academic article by Prof. Jenia Turner, ‘Policing International Prosecutors’, suggests that a more balanced approach by the court is possible. Such an approach might take more account of the needs of international justice, the rights of victims, the importance of ensuring a correct historical record and proportionality (the scale of the punishment should fit the scale of the misconduct). A discussion of the article and the matter of Prosecutorial Ethics is going on at Opinio Juris.