This withdrawal occured after the Trial Chamber issued a decision this Friday on an Application and related requests from the Defence of Mr Kenyatta to refer to the Pre-Trial Chamber the preliminary issue of the validity of the Decision confirming the charges against Mr Kenyatta. This Application, based on article 64(4) of the ICC Statute, alleged that the Confirmation Decision was rendered invalid as a result of the Prosecution’s failure to disclose a potential exculpatory affidavit made by a witness (Witness 4) who allegedly provided key evidence relied upon by the Prosecution.
The Trial Chamber did not send the case back to the Pre-Trial Chamber and simply reprimanded the Prosecution for its failure to disclose the affidavit. However, in her concurring opinion, Judge Christine Van den Wyngaert said that the Prosecution failed to conduct a full and thorough investigation of the case prior to the Confirmation decision, using very strong words: “There can be no excuse for the Prosecution’s negligent attitude towards verifying the trustworthiness of its evidence. 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. […] The Prosecution offered a number of explanations for overlooking the problems with Witness 4′s evidence. However, what all these explanations reveal is that there are grave problems in the Prosecution’s system of evidence review, as well as a serious lack of proper oversight by senior Prosecution staff.”
However, in her concurrence with the other two judges, she explained that the Prosecution’s failures were not weighty enough to warrant a referral to the Pre-trial Chamber or withdrawal of charges against Kenyatta.
The Belgian judge asked to be excused from trying this case as well the one against Kenyan Deputy President, William Ruto, saying her caseload at the court was already too great.
There was no suggestion that her resignation was linked to her criticism of the Prosecution.
The Kenyan cases will now be heard by Judge Robert Fremr, who replaces Van den Wyngaert, along with Presiding Judge Kuniko Ozaki and Judge Chile Eboe-Osuji.