By Felix Olick

NAIROBI, KENYA: One of the judges handling the two Kenyan cases at the International Criminal Court (ICC) has withdrawn.

Belgium Judge Van den Wyngaert maintained that the Prosecution failed to properly investigate the case against President Uhuru Kenyatta prior to confirmation.

“I am of the view there are serious questions as to whether the Prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation,” Wyngaert said.

She said the Prosecution has violated its obligation under The Rome Statue to fully respect the rights of the accused by what she termed as ‘the extremely late and piecemeal disclosure of an inordinate amount of totally new evidence’

“There can be no excuse for the Prosecution’s negligent attitude towards verifying trustworthiness of its evidence. In particular, the incidents relating to Witness 4 are clearly indicative of a negligent attitude towards verifying the reliability of central evidence in the Prosecution’s case,” she said.

The development came even as the Trial Chamber bench rejected a request by President Uhuru to refer his case back to the Pre-Trial Chamber. Uhuru had petitioned the judges to terminate his case or refer it back for reconsideration arguing the confirmation decision was based on false testimony of OTP 4.

He had also argued his case could not stand after ICC Prosecutor Fatou Bensouda withdrew the case against former Civil Service Chief Francis Muthaura, arguing they were charged as indirect co-perpetrators.

Appeal

But in the 57 page decisions, the judges said they did not have the jurisdiction to refer the case to the Pre-Trial Chamber.

They maintained only the Pre-Trial Chamber can entertain such a request for leave to appeal the Confirmation Decision, and that only the Appeals Chamber that can hear an appeal of the Confirmation Decision. However, an appeal challenging the confirmation decision against Uhuru, his Deputy William Ruto and radio Journalist Joshua arap Sang had been dismissed last year.

“The Statute is clear on the separation of powers between the various Chambers in this regard: only the Pre-Trial Chamber can entertain a request for leave to appeal the Confirmation Decision, and it is only the Appeals Chamber that can hear an appeal of the Confirmation Decision,” the judges ruled.  But they reprimanded the prosecution for failing to timely disclose the affidavit to the defence and directed them to review the case and notify the Chamber by May 21.

The judge faulted the prosecution for what she termed overwhelming number of witnesses and quality of documentary evidence obtained after the confirmation of charges.

ICC president Judge Sang-Hyun Song has now replaced Wyngaert with Judge Robert Fremr from Czech Republic.

Meanwhile, the threat letter to Chief Justice Willy Mutunga regarding a previous integrity case against President Uhuru Kenyatta and his Deputy William Ruto has spilled to the International Criminal Court (ICC).

The threat letter and statement from the CJ on judges’ security and the elections had been filled as confidential documents to ICC judges by the registry, before March 4 polls.

In the filing, the registry notified the judges that the documents concern the overall security situation in Kenya and the Security and Safety Section of the Court is making an assessment of the documents.

But in a ruling dated Thursday this week, the judges dismissed the submissions, insisting they ought to have been filed by ICC Prosecutor.