You may have missed this over the weekend, certainly some journalists did and the news coverage of the death of Mutula Kilonzo demoted the subject to the inside pages of Sunday’s newspapers but it is a far too significant development to go unremarked upon: ICC Judge Christine Van den Wyngaert has withdrawn from hearing the cases against President Kenyatta and Deputy President Ruto.

Judge Van den Wyngaert requested three weeks ago to pull out of the trial but the ICC’s Presidency only considered the matter on Saturday when it agreed to let her be excused from her functions as a judge in the forthcoming trial.

The development arose as the Trial Chamber rejected a request to refer the case back to the Pre-Trial Chamber.

“SERIOUS QUESTIONS”

Of greater significance than just the news of her departure is the statement Van den Wyngaert made questioning the conduct of the ICC’s prosecution under Fatou Bensouda.

“I am of the view”, she wrote, “that there are serious questions as to whether the prosecution conducted a full and through investigation of the case of the accused prior to confirmation”.

“In fact I believe”, Van den Wyngaert continued, “that the facts show that the prosecution had not complied with the obligation under Article 54(1) at the time when it sought confirmation and that it was still not even remotely ready when the proceedings before this Chamber started”.

The lawyer defending Uhuru Kenyatta and former Head of Civil Service Francis Muthura have always that the ICC prosecution did not conduct independent investigations and relied too much on material given to it by human rights groups in Kenya.

PROSECUTION NEGLIGENT

Judge Van den Wyngaert said that the prosecution had failed to meet its obligations to respect the rights of the accused as a result of, ‘the extremely late and piecemeal disclosure of an inordinate amount of totally new evidence’.

“There can be no excuse for the Prosecutions negligent attitude towards verifying trustworthiness of its evidence”, wrote Van den Wyngaert. “In particular, the incidents relating to Witness 4 are clearly indicative of a negligent attitude towards verifying the reliability of central evidence in the Prosecution’s case”, she said.

Accepting the request for Judge Van den Wyngaert to withdraw the ICC Presidency also reprimanded the prosecution for it failure to ‘timely’ disclose Affidavits to the defence, directing the prosecution to now review its case file.

PROSECUTION INVITED TO WITHDRAW

The judges also castigated the prosecution for the ‘overwhelming number of witnesses and quality of documentary evidence obtained after the confirmation of charges’.

Although the Chamber is holding a decision until May 13 on giving the defence more time to prepare for the trial it then made a dramatic pronouncement regarding the ‘deficiencies’ in the case, saying that the court could ‘terminate the case’ but rather ‘invited the prosecution to withdraw’.

“The appropriate course would be for the Prosecution to be invited to with draw or seek amendment of the charges”, said Presiding Judge Kuniko Ozaki.

“If the Prosecution were to refuse to do so”, Judge Ozaki continued, “the trial will continue, or, if the Chamber finds that the continuation of the trial on the basis of such charges violates the fundamental rights of the accused so that a fair trial become impossible, it will rely on its general power and obligation as set out in Article 64(2) of the Statute, and terminate or stay proceedings”.

SIGNIFICANT DEVELOPMENT UNREPORTED

Even allowing for the competing news story of the death of Mutula Kilonzo, the Kenya Forum also asks why our newspapers appeared to have largely missed such a significant potential development in the ICC trial proceedings?

The Sunday Nation, for example, relegated the story to just two short columns at the bottom right of page 2 and The Star today covers the decision not to return the case to the pre-trial chamber but does not mention the stinging criticism from Judge Van den Wyngaert or even her decision to withdraw from the trial

Wyngaert will now be replaced by Judge Robert Fremr from the Czech Republic but the question remains: will the ICC trial of Uhuru Kenyatta, William Ruto and Francis Muthura even go ahead?

Related Kenya Forum postings:

Judge Hans-Peter Kaul’s ‘Dissenting Opinion’, January 24, 2012

Certain charges ‘confirmed’ in ICC ruling on Kenya’s post-election violence, January 23, 2012