According to Prosecutor Fatou Bensouda, two of the witnesses said they were unwilling to testify at the trial stage due to security concerns/FILE
According to Prosecutor Fatou Bensouda, two of the witnesses said they were unwilling to testify at the trial stage due to security concerns.
She explained that whereas witnesses 5 and 426 were not ready to testify against Kenyatta, the prosecution did not consider evidence of witness 334 strong enough to advance its case.
“The prosecution hereby notifies the chamber of the withdrawal of three witnesses from its list of witnesses to be relied on at trial,” she asserted in her notification to the Trial Chamber.
She informed the trial chamber that witness 5 was concerned that his location had been identified and for security reasons asked to be dropped from the prosecution list.
“This, in his view, has created insurmountable security risks for himself. Witness 5 believes this was linked to attempts to discover his location,” Bensouda explained in her notification to the Trial Chamber.
The prosecutor said witness 426 had raised concerns over security but even after the court made efforts to assure him that he would be protected he said he would not testify.
“The prosecution has held discussions with witness 426 to determine whether any measures could be taken to mitigate his concerns and secure his attendance at trial. These talks were unsuccessful and witness 426 maintained that he was not willing to testify.”
When charges were confirmed against Kenyatta, there were 30 witnesses but before the trial begins there are only five key witnesses left to testify.
In April this year, the prosecutor announced the withdrawal of four witnesses out of the 12 key witnesses lined up for the trial, which at the time also involved former Civil Service chief Francis Muthaura. Evidence of witness 4 who was the only witnesses against Muthaura and also testified against Kenyatta was dropped from the prosecution list of witnesses.
The others who have withdrawn are witnesses 2, 9 and 10.
As a result, charges against Muthaura were dropped on March 11 after the prosecution said it did not have evidence to sustain his trial.
Kenyatta’s defence team questioned how Kenyatta implemented a ‘common plan’ without his co-accused in an application seeking to have charges against him also dropped even though he was committed to trial.
The case against Kenyatta which is due to begin on November 12 will be before Kuniko Ozaki as presiding judge, judges Robert Fremr and Chile Eboe-Osuji.
Kenyatta’s defence counsels include Steven Kay QC and Gillian Higgins.
Victims Legal Representative Fergal Gaynor acts on behalf of victims affected by the violence in Nakuru and Naivasha in 2008.
Meanwhile, ICC judges on Thursday afternoon granted the prosecution leave to appeal the decision that allowed Ruto to be exempted from ‘continuous presence’ during his trial.
Bensouda in her request to appeal last month argued that all accused persons should be treated equally and Ruto should not be exempted from attending all the sessions.
She said he should not be allowed to skip sessions simply because he holds an executive position in the government.
This was after the ICC judges allowed Ruto to attend some sessions and skip others to give him time to attend to State duties as deputy president.
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