In her opinion the prosecution failed to disclose to the Pre-Trial Chamber on the credibility of witness four and disclosing new evidence after confirmation stage.
“There are serious questions as to whether the prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation. I believe that the facts show that the prosecution had not complied with its obligations at the time when it sought confirmation and that it was still not even remotely ready when the proceedings before this Chamber started,” she stated.
She further agreed with Kenyatta’s argument that the prosecution introduced evidence and witnesses that had not been disclosed before.
“I stress the concerns expressed in the decision about the overwhelming number of post confirmation witnesses and the quantity of post-confirmation documentary evidence, as well as the very late disclosure of the latter.
Wyngaert observed that even though the prosecution faced challenges it has not justified how so many witnesses were interviewed after charges against Kenyatta were confirmed.
“The Prosecution offers no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation. The mere invocation by the Prosecution of generic problems with the security situation in Kenya, without explaining how this situation affected each of the individuals involved, does not adequately justify the extent and tardiness of the post-confirmation investigation,” she opined.
However in her concurrence with the other two judges, she explained that the hitches on the side of prosecution were not weighty enough to warrant a referral to the Pre Trial Chamber or withdrawal of charges against Kenyatta.
Wyngaert was replaced by Judge Robert Fremr who was previously assigned to the Trial Division 4.
The Kenyan cases now will be heard by Fremr, presiding Judge Kuniko Ozaki and Judge Chile Eboe-Osuji.
In a majority decision the Trial Chamber agreed that charges against Kenyatta will remain as confirmed for the trial set for July 9 this year.
The judges said it was not within the mandate of the Trial Chamber to determine the credibility of witnesses and their evidence.
“The Chamber is mindful that it should not place itself in the position of the Pre-Trial Chamber when it comes to the consideration of the credibility of witnesses and assessment of the evidence presented at the Confirmation Hearing,” the judges said.
The majority further ruled that it was not within the mandate of the Trial Chamber to challenge decisions of the Pre Trial Chamber but for the Appeal Chamber to make such a decision.
They also said that it was not within the Trial Chamber’s power to terminate the proceedings as requested by Kenyatta’s defence.
For that reason, the judges dismissed Kenyatta’s application to refer his charges back to the confirmation stage and also to stop the proceedings against him.
“The Chamber has no appellate jurisdiction over decisions of the Pre-Trial Chamber. Accordingly, the Chamber is not convinced that this issue provides a basis to terminate or stay the proceedings. Nor is it, in the view of the majority, necessary for the Chamber’s “fair and effective functioning” to refer this issue back to the Pre-Trial Chamber for reconsideration. To do so for this issue would effectively mean that the Chamber acts as an appellate body, which as considered above, is not permitted by the Statute,” the majority explained.
The judges however agreed that the defence required more time to prepare for the trials based on the fact that there were witnesses and evidence disclosed post confirmation.
However the judges said until it rules otherwise on the start of trials, the trial date for Kenyatta’s case would still remain on 9 July.
“The Chamber considers that it would be disproportionate to terminate or stay the proceedings as a result of the non-disclosure. Nor is it necessary to refer this issue to the Pre- Trial Chamber. Until the chamber has decided on the amount of additional time that the defence will be given, the current date for trial of 9 July 2013 will be retained,” the majority ruled.