The International Criminal Court’s Pre-Trial judge Ekaterina Trendafilova granted the prosecutor Fatou Bensouda permission to add charges to state that “victims were also killed by gunshot in Naivasha.”
Hence, from an evidential perspective, the prosecutor has fulfilled her statutory duty by presenting evidence which supports her allegation that victims were also killed by gunshot in Naivasha.
Trendafilova further explained that by amending the charges, no new charges were introduced since it was the Pre-Trial Chamber that dismissed the allegations by the prosecution that victims were shot using guns after the prosecution failed to provide evidence to prove it.
“The chamber rejected the prosecutor’s allegation that weapons were used in Naivasha due to lack of evidence, and stated: The chamber clarifies that the use of weapons and uniforms is established by the evidence only in relation to the events in Nakuru. Conversely, the chamber does not at this stage of the proceedings find sufficient evidence to substantiate the prosecutor’s allegation that weapons and uniforms were used in Naivasha,” Trendafilova recalled.
Though the prosecution is not allowed to do investigations after confirmation of charges according to the Rome Statute, the judge said under special circumstances it is allowed to continue with investigations even after charges are confirmed based on reasons given by the prosecutor in her request.
The judge said based on complaints by the prosecution that the government of Kenya failed to cooperate with the court and was also unwilling to submit required information to help in the investigations, the Pre-Trial Chamber allowed the prosecution to continue with investigations after charges had already been confirmed.
She also based the approval on security challenges owing it to the alleged intimidation of victims and witnesses.
Another concern that allowed the prosecution to continue with investigations at such a stage was also the challenges that it faced in getting ‘insider witnesses to provide information to the court.’
Kenyatta’s legal team on Monday urged the ICC to dismiss the case against him after prosecutors last week dramatically dropped all charges against his co-accused former Head of the Civil Service Francis Muthaura after a key witness withdrew his testimony.
It was the first time ICC prosecutor decided to drop a case since the world’s first permanent independent war crimes court began operating in 2002.
Lawyer Steven Kay on Monday said all the five charges against Uhuru should now also be reconsidered.
On Wednesday 20 march, Bensouda said she would not drop the crimes against humanity charges facing the president-elect.
She told reporters in Paris that it is only a question of when and not if, Uhuru goes to trial.
Kenyatta’s trial is scheduled to begin in July and he has repeatedly vowed to cooperate with the legal proceedings.