International Criminal Court prosecutors said Monday they are dropping their crimes against humanity case against a prominent Kenyan because of a lack of evidence, a decision that also casts serious doubt on the prosecution of the country's president-elect.
'I do recognize that this is not only a courageous but a correct decision.' —Karim Khan, Muthaura's attorney
The decision to drop the case against Cabinet Secretary Francis Muthaura was an unprecedented admission of failure by prosecutors and the first time in the 10-year-old court's history that they have dropped a case so close to trial.
It also threw into question the future of the case against president-elect, Uhuru Kenyatta, who is charged along with Muthaura as a "co-perpetrator."
Evidence against Kenyatta 'utterly flawed'
Kenyatta's lawyer called on prosecutors to reconsider their case against him.
"In light of what the prosecution has said ... they should consider their position honestly in relation to Mr. Kenyatta," lawyer Steven Kay said. "The evidence they are seeking to rely on is utterly flawed."
Prosecutor Fatou Bensouda told judges she is withdrawing all charges against Muthaura, who is charged along with Kenyatta with crimes including murder, rape and deportation for his alleged involvement in deadly violence that erupted after his country's 2007 presidential election.
"We do not feel that we have a reasonable prospect of conviction and therefore withdraw the charges against him," Bensouda told judges.
While Muthaura, 66, is indicted together with Kenyatta, prosecutors argue they have more evidence against Kenyatta and his prosecution should continue.
Muthaura, who was sitting in court, showed no emotion as Bensouda made her statement, but his attorney, Karim Khan, welcomed the announcement.
"It is absolutely justified and I do recognize that this is not only a courageous but a correct decision," Khan said.
'Limited assistance' from Kenyan government
While Bensouda stressed that the case against Kenyatta would continue, judges did not appear so sure.
Presiding Judge Kuniko Ozaki said the announcement "will have consequences not just for the case against Mr. Muthaura, but also in some way Mr. Kenyatta."
She asked defence lawyers to outline their reactions to the announcement in writing by March 22.
Bensouda said witnesses in the case against Muthaura had either "been killed or have died since those events and other witnesses refuse to speak with the prosecution."
She also accused Kenyan authorities of not living up to their public pledges to fully co-operate with the court in its investigation of violence after the 2007 vote that left more than 1,000 people dead.
The Kenyan government "has provided only limited assistance to the prosecution and they have failed to provide the prosecution with access to witnesses or documents that may shed light on Mr. Muthaura's case."
Bensouda stressed that the decision wasn't linked to Kenya's election last week, in which Kenyatta won the presidency.
"We are all keenly aware of the most recent political developments in Kenya, but these have not ... and cannot have a bearing on the decision that I make as prosecutor," Bensouda said.
Kenyatta trial postponed
Kenyatta's lawyer said Monday's shock announcement underscored the necessity for judges to order a review of evidence that prosecutors say proves Kenyatta orchestrated deadly post-election violence.
Kay has argued that the case should be reviewed because a key prosecution witness lied, fundamentally undermining the prosecution case against him and Muthaura.
Bensouda alleged that the witness said he lied after being bribed. Muthaura's lawyer vehemently denied that either he or his legal team had played any role in interfering with witnesses.
Kenyatta won last week's election despite his indictment at the Hague-based court on charges of crimes against humanity including murder, rape and deportation. Prosecutors label him an "indirect co-perpetrator" of violence committed by his supporters in 2007-08.
Kenyatta, the son of Kenya's founding father, Jomo Kenyatta, and one of the country's richest men, insists he is innocent.
His trial had been scheduled to start next month, but judges last week postponed it until July, saying the defence needed more time to prepare.
Khan asked judges to formally call a halt the Muthaura case in light of the prosecution announcement.
He said his client should be allowed "to get on the plane back to Kenya in the knowledge that the case against him is withdrawn."
In a written statement, Bensouda pledged her "unwavering commitment" to justice for victims of the postelection violence.
"The real victims of the terrible violence in Kenya five years ago are the men, the women, and the children, who were killed, injured, raped, or forcibly displaced from their homes — and whose voices must not be forgotten," she said. "I will not forget them."