According to the prosecution’s submission to the Trial Chamber, witnesses 2, 9 and 10 have informed the court that they will not be testifying against Kenyatta.
“Three of the 12 prosecution witnesses relied up on at confirmation retracted their willingness to testify after the confirmation hearing: Witnesses 2, 9 and 10. Their provision of formal statements to the prosecution prior to confirmation indicated their willingness to testify, Prosecutor Fatou Bensouda indicated.
This means four key witnesses out of the 12 who testified against Kenyatta before the charges were confirmed including the well-known witness 4 whose evidence was dropped after he said he had lied to the court have dropped out.
At the start of the case there were about 30 prosecution witnesses in the Kenyatta case.
The prosecution will now rely on evidence of the remaining eight key witnesses and others to hold onto the charges levelled against Kenyatta.
According to Bensouda, the three witnesses gave indications last year that they would not be testifying at the trial stage as earlier thought.
“When the prosecution contacted witness 2 on November 3, 2012 to confirm his availability to testify, he said he was rethinking his decision. The prosecution made several attempts to persuade witness 2 to testify, either as a prosecution or as a court witness, but on November 20, 2012, he informed the prosecution that his decision not to testify was final,” Bensouda explained in reference to witness 2.
Former Head of Civil Service Francis Muthaura had his charges dropped as the prosecution said the Pre-Trial Chamber relied on evidence given by witness 4 who is no longer on the list of witnesses.
The prosecution said although part of the evidence used to confirm Kenyatta’s charges was from witness 4, evidence from witnesses 11, 12 and 6 was also relied upon by the Pre-Trial Chamber.
The prosecutor explained; “Its findings were based upon the evidence of Witnesses 11, 12 and 6. The Pre-Trial Chamber found that their evidence “established (the 30 December State House meeting) to the requisite threshold” of “substantial grounds”. This finding is not affected in any way by the post-confirmation revelations with respect to witness 4.”
When the prosecutor dropped charges against Muthaura she told the court that witnesses had been killed, intimidated and that the government of Kenya had refused to cooperate.
However critics have urged the prosecution make use of the provisions in the Rome Statute which gives it the power to sanction those who have intimidated witnesses if it has evidence to support its allegations.
The prosecution during the status conference confirmed that some witnesses had dropped out of the two Kenyan cases against Kenyatta, his deputy William Ruto and former media personality Joshua arap Sang.
The Ruto-Sang case has 41 prosecution witnesses, but five of them have been dropped.