“I have decided, as of the state of evidence available now, that we have no other choice but to withdraw the charges against Mr Muthaura,” ICC chief prosecutor Fatou Bensouda told The Hague-based court.
During a status conference for Muthaura and Kenyatta, Bensouda told the court that it was quite a difficult decision for the prosecution to make.
She explained that the absence of strong incriminating evidence and lack of witnesses compelled her to drop the charges.
She regretted that witnesses were compromised, while others had died before they could testify before the court.
“We have no evidence against Muthaura. There are other reasons… Several people who may have provided important evidence regarding Mr Muthaura’s actions have died, while others are too afraid to testify for the prosecution.”
“Other witnesses refused to speak with prosecution,” she explained.
Bensouda also said lack of cooperation by the government in releasing key documents and also allowing the prosecution to get access to witnesses led to a weak case.
“The government of Kenya failed to cooperate… no access to witnesses or documents to shed light on Muthaura’s case,” she asserted.
She however said the other Kenyan cases were different from the Muthaura case and said the prosecution will continue to pursue them.
However presiding Judge Kuniko Ozaki put her into task to explain why the prosecution waited for trial date to be set without informing the trial chamber of the weakness of the case against Muthaura.
She was also told to explain how dropping charges against Muthaura would affect his co-accused President-elect Uhuru Kenyatta who is jointly accused of financing the Mungiki to carry out retaliatory attacks.
She was also asked to explain further to the court how the prosecution arrived at dropping the charges at such a stage despite being aware of Muthaura’s case in last November.
Judge Ozaki made it clear to the prosecution that its decision will definitely have an impact in Kenyattas’ case.