'Dark day for justice' says ICC Prosecutor, dropping charges against Kenyan President

“I am withdrawing the charges against  Kenyatta because I do not believe that it is possible at this time, for me to fully investigate and prosecute the crimes charged in this case,” said  Fatou Bensouda in a statement released in the Hague today.

“The withdrawal of the charges does not mean that the case has been permanently terminated.  Kenyatta has not been acquitted, and the case can be re-opened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them is discovered,” she added.

“This is a painful moment for the men, women and children who have suffered tremendously from the horrors of the post-election violence, and who have waited, patiently, for almost seven years to see justice done,”  Bensouda said.

She added that she based her decision on the specific facts of this case, not on any other consideration and stressed that as Prosecutor, her actions and decisions have “always been guided by the law and the evidence.”

There were, however, “severe challenges” to the Prosecutor’s Office and her investigation.

“Several people who may have provided important evidence regarding  Kenyatta’s actions have died, while others were too terrified to testify,”  Bensouda said.

On Wednesday, a Trial Chamber of the ICC rejected the request of the Prosecutor to adjourn the case. The Chamber ordered the Prosecution to file, within one week, a notice to withdrawn charges until at least the level of evidence had improved to a degree that would warrant a trial.

Kenyatta faced five counts of crimes against humanity (murder, deportation or forcible transfer of population, rape, persecution and other inhumane acts) for allegations that he helped incite violence following Kenya’s December 2007 presidential election.

The charges against him had been confirmed January 23, 2012 and the case was referred to trial before the Trial Chamber.

Bensouda said that  Kenyatta’s Government had failed to fully cooperate with the investigation and in providing the most relevant documentary evidence regarding the post-election violence.

“Ultimately, the hurdles we have encountered in attempting to secure the cooperation required for this investigation have in large part, collectively and cumulatively, delayed and frustrated the course of justice for the victims in this case,” said the Prosecutor.

“On Fridayis a dark day for international criminal justice. Be that as it may, it is my firm belief that today’s decision is not the last word on justice and accountability for the crimes that were inflicted on the people of Kenya in 2007 and 2008; crimes that are still crying out for justice,” she said.