In a media statement, the ICC Outreach Programme said Muthaura is not entitled to a refund of legal fees and other expenditures he may have incurred in the case after the charges against him were withdrawn because he has never been in ICC custody as outlined under the Rome Statute.
The Rome Statute states that a person who has been a victim of unlawful arrest and detention or a serious miscarriage of justice that led to a conviction after a trial may have the right to compensation.
“Mr Muthaura has never been arrested nor has he been in the ICC custody; thus, this situation does not apply to him,” the statement explained.
In her notice to the court on Monday, ICC Prosecutor Fatou 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.
Through his lawyer Karim Khan, Muthaura said he will be seeking to sue the International Criminal Court and former ICC prosecutor Moreno Ocampo for deliberately misleading and falsely accusing him of crimes he never committed.
At the same time, the Public Outreach Programme said they are still waiting for the Judges to rule on whether President-elect Uhuru Kenyatta and his Deputy William Ruto will be required to physically attend the their trials at the Hague.
Kenyatta’s defence team had last month filed a request to have him attend the trials through video link.
The Outreach Programme statement explains that at the ICC trials cannot be conducted in the absence of the accused person. It emphasised that the accused must be physically present during the hearings.
“The Judges have yet to decide on this issue as to whether this participation would satisfy the legal requirement of the accused presence at his trial; we cannot speculate on their decision,” the statement indicated.
The Judges are also expected to rule on whether the trials can be held in Kenya or Arusha as had been requested by defence lawyers.
Unless the Judges decide otherwise, ICC trials will take place at the seat of the Court in The Hague (The Netherlands) stated the Outreach team, adding that according to the Rome Statute, the conduct of trial in situation-related country or another location may also be ordered by the Judges.
“A decision by the Judges is expected on this issue. It is important to note that irrespective of the territory where the trials will take place, the cases remain under the ICC’s jurisdiction – the trials will be conducted by the Judges and guided by ICC legal principles,” stated the statement from the Outreach Programme.
The ICC said it expects continued co-operation with the government after the general elections in which Kenyatta (who is a suspect at the ICC) was declared President –elect.
The ICC expected all the Kenyan accused as well as Kenyan authorities to fully comply with all their obligations.
“Mr Kenyatta had declared on several occasions, and made written submissions to the ICC Judges, indicating his willingness to continue cooperating with the court,” said the Outreach team.
ICC has scheduled a status conference on Monday at 5.30pm Kenyan time to discuss the fate of Kenyatta’s case after withdrawal of charges against his co-accused Muthaura.
During the conference the parties will discuss the impact of withdrawal of charges against Muthaura on the Kenyatta case since both of them were jointly accused of planning Mungiki attacks in Nakuru and Naivasha during the 2008 post election violence.
Ruto and former radio presenter Joshua Sang’s crimes against humanity case has been slated for May 28.
They are accused of having mobilised attackers and also funded them and provided weapons to carry out the attacks leading to multiple deaths.
Kenyatta who is the only accused person in Kenya Case I is set to stand trial on July 9.