The judges also poked holes into the approach of investigating President Kenyatta’s case and also the laxity of the Prosecution in following up on its request to the Kenyan Government.
The judges noted that whereas the prosecution made requests to the government, it did not have a proper follow up.
They explained that they refused to refer Kenya to the ASP because the issue of non-compliance was also presented at an appropriate stage when the case had been confirmed for trial.
“The Chamber stressed that the issue of the Kenyan Government’s compliance with the cooperation request should have been addressed at a much earlier stage; it found that doing so would have mitigated the impact that the non-compliance has had on the proceedings in this case to a significant degree,” the judges asserted.
In the same ruling released on Wednesday afternoon, the judges also rejected the defence’s application seeking the withdrawal of charges against President Kenyatta.
The judges said their ruling also put into consideration the plight of the victims of the Post Election Violence listed in the case against President Kenyatta.
They gave the Prosecution the option of withdrawing charges against President Kenyatta if it did not have evidence to sustain its allegations or starting fresh allegations at a future date.
“Unless the evidentiary base has now improved to a degree which would enable the trial to proceed, it considered the appropriate course of action to be a withdrawal of charges by the Prosecution. The Chamber additionally found that, in the event of a withdrawal of charges, its decision would not prejudice the right of the Prosecution to bring new charges against the accused at a later date, based on the same or similar factual circumstances, should it obtain sufficient evidence to support such a course of action,” they ruled.
All parties in the case are free to challenge the ruling at the Appeals Chamber if disgruntled by the ruling made by judges Kuniko Ozaki (presiding) Robert Fremr and Geoffrey Henderson.
The ruling on Wednesday was in response to Bensouda’s third application requesting for an adjournment of the trial against President Kenyatta.
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She said she did not have sufficient evidence to sustain the trial and accused the Government of Kenya of non-cooperation in submitting evidence to make her case strong.
READ ICC Prosecution wants indefinite adjournment of Uhuru case
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