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not continue after the failure of OTP-4’s evidence, the accusations of fraud made against the Prosecutor have not been withdrawn as far as I can tell.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.
Lots has happened in the last week or so, I’ll give a brief summary.
We’ve received more clarity on the type of misconduct and specific allegations that the defence is making against the OTP’s lawyers (I remember wondering why Muthaura’s lawyers were so quick to hire a former OTP counsel to assist in the preparation of its defence; now I wonder no more). The defence teams filed recent documents detailing their accusations that the several members of the OTP team withheld crucial evidence. One defence team called it a ‘win at all costs’ attitude. Clearly in there Kenyatta/Muthaura case, there is a full-court press against the OTP: challenging its evidence, its case theory, its case preparation and the ethics of its lawyers.
The Trial Chamber held a status conference on 18 March. During the conference, the discussion was about the effect of the withdrawal of charges against Muthaura on the Kenyatta case. The Judges were interested to hear what the participants thought about the element of the common plan which must be proven for there to be indirect co-perpetration liability. In other words, if Kenyatta and Muthaura were charged as indirect co-perpetrators it means the OTP had to prove that each made essential contributions such that one or the other would have frustrated the common plan by failing to perform their essential part. Therefore, the defence argument is that if Muthaura’s essential contribution is unproven/non-existent, then it follows that the common plan theory must also fail and this fatally undermines the Kenyatta case (at least in relation to this mode of liability).
The Prosecutor challenges the ‘essential contribution’ test as well as whether the collapse of the case against one indirect co-perpetrator can directly affect the case against the others in such a significant way. She wants the focus to be Kenyatta’s contribution, not the absence of Muthaura’s contribution. It seems that Judge Wyngaert has her own reservations about the mode of liability called ‘indirect co-perpetration’ which she made clear in her separate opinion in the Ngudjolo case. However, she and the other judges offered the Prosecutor a potential get-out-of-jail card by asking whether they might consider trying Kenyatta as an indirect perpetrator (i.e. drop the need for common plan, joint control theory, etc. that comes with having a co-perpetrator).
Further written submissions will come and the Chamber will rule on what happens to the Kenyatta case.
In addition, the Trial Chamber has now officially accepted the dropping of the charges against Francis Muthaura
Finally, as if there were not enough developments this case, witness OTP-8 in the Ruto/Sang case apparently felt the pangs of a heavy conscience and decided to unburden it by revealing that testimony the witness gave against Mr. Ruto was untrue. Unlike the OTP-4 issue in Kenyatta/Muthaura which had been simmering since the confirmation proceedings (when the defence first publicly raised questions about OTP-4), one can’t help but see a correlation between OTP-8’s Damascus moment and the new political dispensation in Kenya. Perhaps the correlation is simply a coincidence. We shall see.
or check out this longer clip:
Kiraitu Murungi lost no time in grabbing a mile from the inch offered by the Prosecutor; he stated confidently that following the collapse of Muthaura’s case, the trials of Kenyatta and Ruto (who is facing a charges on a completely different transaction of crimes) would soon follow suit.
Also note that some of the media are wrongly calling it an ‘acquittal’.
Subsequent to the Status Conferences last month and after hearing observations from the parties, the Trial Chamber postponed the Kenyatta/Muthaura case to 9 July 2013.
A week later, the Prosecutor decided the case against Muthaura was no longer worth pursuing in its current form. She has now dropped all charges against him, according to this press release.
She gave the following reasons for dropping the charges:
“…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 against Mr. Muthaura after this witness recanted a crucial part of his evidence, and admitted to us that he had accepted bribes.”
This is unprecedented at the ICC, though witness tampering has happened in cases in other tribunals (such as the ICTY). Of course, the defence argument would be that had she done sufficient investigations, she would have clearly seen the weaknesses in this case. This does not directly affect the Kenyatta case which the OTP will continue. Also no word as to whether the Prosecutor would seek fresh evidence to bring new charges for confirmation; this is not an acquittal, so the Prosecutor can still investigate Muthaura if she still believes he had a role in the crimes alleged.
The Trial Chamber has also postponed the Ruto/Sang case to 28 May, giving the Defence just over a month more to get ready.