It seems that another one of the
prosecutions at the International Criminal Court is in a meltdown mode. This is
the case against Ambassador Francis Muthaura, who is charged jointly with Uhuru
Kenyatta, the frontrunner in the presidential race.
Last year, the Pre-Trial Chamber
confirmed charges against Muthaura and Kenyatta. Since then, the Trial Chamber has been
organizing the trial itself, due to begin later this year. But when the
Prosecutor disclosed evidence to the Defence, she seemed to recognize that some
of the materials on which the Pre-Trial Chamber based its decision confirming
the charges were not reliable or plainly untrue.
Lawyers for both Muthaura and Kenyatta
have filed motions asking the Trial Chamber to refer the cases back to the
Pre-Trial Chamber so that it can reassess the confirmation of the charges in
light of the changed evidentiary situation.
Replying to the motions, the Prosecutor
has conceded that Muthaura’s motion is well-founded. She supports the referral
to the Pre-Trial Chamber, which may be authorized under article 64(4) of the
Statute. Here is what she says:
The witness whose statement is at issue
was essential on the issue of Mr Muthaura’s criminal responsibility and, in
fact, was the only direct witness against him. Hence, the confirmation
decision, if stripped of references to the witness’ evidence, might not
establish substantial grounds as a matter of law. The Prosecution also
acknowledges that its disclosure error limited the Defence’s ability to
challenge the critical witness’ testimony, which appears to have been the
principal evidence relied upon by the Pre-Trial Chamber in its decision to
confirm the charges against Mr Muthaura. In the particular circumstances of Mr
Muthaura’s case, and given that he has elected to waive his Article 67(1)(c)
right to go to trial without undue delay, the Prosecution does not oppose new
confirmation proceedings with respect to him, should the Trial Chamber
determine that there is a legal basis for such relief.
If it doesn't, the Prosecutor should apply to drop the charges altogether.
The Prosecutor has not made the same
concession with respect to Kenyatta.
I have noted previously that the score
sheet for the Prosecutor is not very impressive. Of 14 charges that have
reached the confirmation stage, four have been dismissed. If Muthaura is also
rejected, that will make five. A further case that went to trial has resulted
in an acquittal. That makes six cases in which the Prosecutor chose to proceed
but where there simply was not enough evidence. Soon we will know whether the
Appeals Chamber allows the Trial Chamber to proceed in Katanga with modified
charges. If it does not, presumably Katanga will also be acquitted, bringing the total to seven.
Six out of fourteen – possibly seven if
Katanga is acquitted - is a pretty high rejection rate. By comparison, a recent
study published by Alette Smeulers shows that the average acquittal rate at the ad hoc tribunals is about 15%
(0% at the Special Court for Sierra Leone). It is true that the ad hoc
tribunals do not have a confirmation stage. But this is not a significant
distinction in terms of assessing the reliability of the Prosecutor’s decision
to proceed with a case. The fact is that at the ad hoc tribunals, the Prosecutor gets a
conviction in about 85% of the cases where he or she elects to proceed, whereas
at the International Criminal Court, the success rate to date is barely over