The Pre-Trial Chamber of the International Criminal Court (ICC) has allowed the prosecutor to amend charges facing president-elect Uhuru Kenyatta. Pre-Trial judge Ekaterina Trendafilova granted Fatou Bensouda permission to add charges to state that “victims were also killed by gunshot in Naivasha.”
“Thus, from an evidentiary perspective, the prosecutor has fulfilled her statutory duty by presenting evidence which supports her allegation that victims were also killed by gunshot in Naivasha. Suffice to mention that the four witness statements presented by the prosecutor reveal that guns such as G3 rifles and more commonly AK47s were used in the killings of Luos in Naivasha. As the Appeals Chamber has stated in one of its early judgments,” Trendafilova said in her communication.
Trendafilova further explained that by amending the charges, no new charges were introduced since it was the Pre-Trial Chamber that dismissed the allegations by the prosecution that victims were shot using guns after the prosecution failed to provide evidence to prove it.
“The chamber explicitly rejected the prosecutor’s allegation that weapons were used in Naivasha due to lack of evidence, and stated: The chamber clarifies that the use of weapons and uniforms is established by the evidence only in relation to the events in Nakuru. Conversely, the chamber does not at this stage of the proceedings find sufficient evidence to substantiate the prosecutor’s allegation that weapons and uniforms were used in Naivasha,” Trendafilova recalled.
“Thus, it is apparent that the nature of the requested amendment does not aim at adding an additional charge or substituting an existing charge with a more serious one. Rather, it is a re-insertion, on the basis of the new evidence presented, of an already known specific factual allegation for an existing charge of murder in Naivasha – a location that has already been referred to in the Confirmation of Charges Decision.
It follows that the Single Judge does not need to hold a hearing for the purpose of deciding on the prosecutor’s request,” she asserted. Though the prosecution is not allowed to do investigations after confirmation of charges according to the Rome Statute, the judge said under special circumstances it is allowed to continue with investigations even after charges are confirmed based on reasons given by the prosecutor in her request.
Trendafilova said based on complaints by the prosecution that the government of Kenya failed to cooperate with the court and was also unwilling to submit required information to help in the investigations, the Pre-Trial Chamber allowed the prosecution to continue with investigations after charges had already been confirmed.
She also based the approval on security challenges owing it to the alleged intimidation of victims and witnesses.
Another concern that allowed the prosecution to continue with investigations at such a stage was also the challenges that it faced in getting ‘insider witnesses to provide information to the court.’
“In the context of the present case, the prosecutor managed to furnish the chamber not only with evidence supporting the existence of the factual allegation, but also with a reasonable justification for the continuation of her investigation subsequent to the confirmation hearing,” Trendafilova asserted.
Kenyatta’s legal team on Monday urged the ICC to dismiss the case against him after prosecutors last week dramatically dropped all charges against his co-accused former Head of the Civil Service Francis Muthaura after a key witness withdrew testimony.
It was the first time ICC prosecutor decided to drop a case since the world’s first permanent independent war crimes court began operating in 2002. Lawyer Steven Kay on Monday said all the five charges against Uhuru should now also be reconsidered.
On Wednesday, Bensouda said she would not drop the crimes against humanity charges facing the president-elect. She told reporters in Paris that it is only a question of when and not if, Uhuru goes to trial.
Kenyatta’s trial is scheduled to begin in July and he has repeatedly vowed to cooperate with the legal proceedings.
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