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.