Speaking to journalists on arrival from The Hague, Muthaura said the charges which were trumped up, had emotionally torn him apart.
“The case has broken my heart. Not only because I was charged, but much more so because I have seen justice abused and manhandled by those whose primary duty it was to respect it and safeguard it at all costs. It is an injustice that charges were brought by the prosecutor. It is a tragedy that safeguards to prevent abuse of the ICC mechanism so clearly and so obviously failed,” delighted Muthaura asserted.
He said he has been living a painful life since former prosecutor Moreno Ocampo listed him in December 2010 as a perpetrator of the violence that rocked Kenya after disputed elections five years ago.
He appealed to the prosecution to analyse the pending cases of President-elect Uhuru Kenyatta, his deputy William Ruto and ex-radio journalist Joshua arap Sang to ensure justice is delivered transparently and truthfully.
“I say please be fair… please investigate your case; please look for the truth and make sure that your staff live by these guiding principles,” he advocated.
His lawyers Karim Khan and Kennedy Ogeto said they knew from the beginning that Muthaura had no case to answer to before the court.
He praised ICC Prosecutor Fatou Bensouda for doing what Ocampo had failed to do despite several filings indicating that no concrete evidence was available to try Muthaura: “She has done the right thing in trying to get her house in order and take over the mantle of the mess that her predecessor left her.”
Khan wondered why the prosecution failed to order the arrest of their client if they had evidence that he had bribed witnesses.
“The story here is that there was no bribery or intimidation by the defence. It is because there was no case. It is manifestly obvious by the prosecutor’s own conduct. Any reasonable diligent prosecutor would seek to arrest an intimidator or briber. The prosecutor never sought a warrant for the arrest for Muthaura or indeed for that matter for the Ocampo Six. Even today despite these allegations for two years, there has been no suggestion that any member of my legal team have engaged in anything inappropriate behaviour,” he explained.
He further clarified that the government handed over important documents including the National Security Intelligence Service reports for the court to do its investigations on the 2008 post-election violence dismissing claims by the prosecution of cooperation by the Kenyan government.
“There was no doubt right from the beginning that there was no evidence in this case to sustain charges against our client,” Kenyan international lawyer Ogeto added.
In her notice to the court on Monday, Bensouda said the prosecution dropped Muthaura’s case because the government had failed to hand over vital documents.
She also argued that most of the witnesses in the Muthaura case had died while others had been bribed.
Under the Rome Statute, the prosecutor is allowed to issue a warrant of arrest if a suspect intimidates or threatens witnesses.
Khan in his Nairobi briefing to the media also said the ICC process that changed from the ‘Ocampo Six’ to ‘Bensouda Three’ should be a big lesson to ensure mistakes are not repeated.
He also urged the court to ensure efficiency, transparency and careful analysis before making decisions.
According to him, Ocampo rushed to investigate the six without critical analysis of the available evidence.
He said lack of caution was clearly demonstrated in the manner in which the cases have progressed since 2010.