THE HAGUE, Netherlands — A lawyer for Kenyan president-elect Uhuru Kenyatta said Monday the International Criminal Court prosecution of his client for allegedly orchestrating post-election violence five years ago is "utterly flawed" after prosecutors dropped their case against his co-accused for lack of evidence.
However, it remains unclear exactly what effect the dropping of charges against top Kenyan civil servant Francis Muthaura will have on Kenyatta's trial, which is scheduled to start in July.
The shock decision to drop the case against Muthaura was an unprecedented admission of failure by prosecutors and the first time in the 10-year-old court's history that prosecutors have withdrawn charges against a suspect so close to trial.
Chief Prosecutor Fatou Bensouda said her hand was forced after witnesses died, were killed or bribed and Kenyan authorities failed to live up to their pledges to cooperate.
Kenyatta's lawyer Steven Kay urged prosecutors to reconsider their prosecution of the man elected president in Kenyan elections a week ago despite the international charges hanging over him.
"In light of what the prosecution has said ... they should consider their position honestly in relation to Mr. Kenyatta," Kay said. "The evidence they are seeking to rely on is utterly flawed ... all their witnesses are utterly flawed."
Kenyatta was charged in 2011 along with Muthaura as a "co-perpetrator" in a plot to attack supporters of their political rivals in the aftermath of Kenya's 2007 elections. Months of bloody clashes between supporters of rival politicians left more than 1,000 people dead and forced thousands from their homes.
Bensouda told judges she was withdrawing all charges against Muthaura, who faced charges along with Kenyatta of crimes against humanity including murder, rape and deportation for his alleged involvement in deadly violence that erupted after his country's 2007 presidential election.
"We do not feel that we have a reasonable prospect of conviction and therefore withdraw the charges against him," Bensouda told judges.
While Muthaura, 66, is indicted together with Kenyatta, prosecutors argue they have more evidence against Kenyatta and his prosecution should continue.
Muthaura, who was sitting in court, showed no emotion as Bensouda made her statement, but his attorney, Karim Khan, welcomed the announcement.
"It is absolutely justified and I do recognize that this is not only a courageous but a correct decision," Khan said.
While Bensouda stressed that her case against Kenyatta would continue, judges did not appear so sure.
Presiding Judge Kuniko Ozaki said the announcement "will have consequences not just for the case against Mr. Muthaura, but also in some way Mr. Kenyatta."
Bensouda said witnesses in the case against Muthaura had either "been killed or have died since those events and other witnesses refuse to speak with the prosecution."
The Kenyan government, she said, "has provided only limited assistance to the prosecution and they have failed to provide the prosecution with access to witnesses or documents that may shed light on Mr. Muthaura's case."
Bensouda stressed that the decision wasn't linked to Kenya's election last week, in which Kenyatta won the presidency.
"We are all keenly aware of the most recent political developments in Kenya, but these have not ... and cannot have a bearing on the decision that I make as prosecutor," Bensouda said.
Kay said Monday's announcement underscored the necessity for judges to order a review of evidence that prosecutors say proves Kenyatta orchestrated deadly postelection violence.
Kay has argued that the case should be reviewed because a key prosecution witness lied, fundamentally undermining the prosecution case against him and Muthaura.
Bensouda alleged that the witness said he lied after being bribed. Muthaura's lawyer vehemently denied that either he or his legal team had played any role in interfering with witnesses.
Kenyatta, the son of Kenya's founding father, Jomo Kenyatta, and one of the country's richest men, insists he is innocent.
His trial had been scheduled to start next month, but judges last week postponed it until July, saying the defense needed more time to prepare.
Khan asked judges to formally call a halt the Muthaura case in light of the prosecution announcement.
He said his client should be allowed "to get on the plane back to Kenya in the knowledge that the case against him is withdrawn."
In a written statement, Bensouda pledged her "unwavering commitment" to justice for victims of the postelection violence.
"The real victims of the terrible violence in Kenya five years ago are the men, the women, and the children, who were killed, injured, raped, or forcibly displaced from their homes – and whose voices must not be forgotten," she said. "I will not forget them."