By Felix Olick
Nairobi, Kenya: President-elect Uhuru Kenyatta has explained to trial judges at the International Criminal Court why he wants them to dismiss the case against him, or send it back to the Pre-Trial Chamber II.
In submissions filed by his lawyers Steven Kay and Gillian Higgins, Uhuru argues the prosecution has built a new case after discarding testimony used by Pre-Trial Chamber II judges to confirm the charges against him.
Uhuru has asked the Trial Chamber judges to refer the decision to confirm charges against him back to the Pre-Trial Chamber II for reconsideration, arguing his committal to trial is based on false testimony.
ICC prosecutor Fatou Bensouda dropped witness number four after he recanted his evidence and, subsequently, dropped the charges against Uhuru’s co-accused, former Head of Civil Service Francis Muthaura.
Uhuru’s legal team argues that as with Muthaura, the grounds for terminating the trial against Uhuru are based similarly on a lack of evidence to support the confirmation of charges decision.
They cite Article 64(4) of the Statute saying failure by the prosecutor to disclose key evidence has an impact on the conduct of the proceedings now before the Trial Chamber.
“The defence submits that the withdrawal by the prosecutor of the charges against Muthaura requires the Chamber in this case to consider exercising its power to terminate the proceedings against Mr Kenyatta, in performing its functions prior to the commencement of trial,” his lawyers argue.
Uhuru has consistently reiterated that his case at The Hague cannot stand without that of Muthaura since the two cases are linked.
He has argued the prosecution has consistently framed its case as a common plan involving the two of them.
“Any decision regarding the liability of Muthaura would necessarily, on the prosecution’s own analysis, impact on any determination of Uhuru’s liability. In short, the mode of liability as confirmed cannot be maintained against Uhuru without Muthaura,” his lawyers said.
Uhuru’s lawyers argue that confirmation of charges was based on false testimony of Witness Number Four who claimed to have witnessed alleged criminal meetings.
But the prosecutor has insisted there is enough evidence to support the charges against Uhuru.
Uhuru contends about “84 per cent” of the testimonial evidence the prosecution intends to rely upon in the trial was collected after the confirmation of charges.
“The extent of the prosecution’s post-confirmation investigations in this case is manifestly excessive and has resulted in a fundamental factual shift of the prosecution’s case,” he says in submissions after last month’s status conference.
Uhuru’s lawyers say the prosecutor’s late investigations and delayed disclosure of evidence led to the postponement of the commencement of trial.
They note that the prosecutor must apply to the Trial Chamber to have the evidence gathered after confirmation of the charges against Uhuru admitted.
“The prosecution must not be encouraged or permitted to proceed to confirmation on unsatisfactory evidence in the knowledge that they will have a second chance to fill gaps and omissions at a later stage,” says Uhuru’s defence counsel in their filing.
In his latest submission of March 28, just two days before the Supreme Court upheld his presidential victory, Uhuru says it was “irresponsible of the prosecution to elect to proceed to confirmation before it had thoroughly investigated its case.”
Recently, Pre-Trial Chamber II allowed Bensouda to add to the document containing the charges that victims in the case against Uhuru also died of gunshot wounds in Naivasha.
In the decision issued by the Pre-Trial Chamber II presiding judge Ekaterina Trendafilova, who confirmed the charges against Uhuru and three others, she said from four witness statements, it was clear guns such as G3 rifles and AK 47 were used in the killings in Naivasha.
“From an evidentiary perspective, the prosecutor has fulfilled her statutory duty by presenting evidence which supports her allegation that victims were also killed by gunshot in Naivasha,” Trendafilova said in the ruling.
Uhuru argues that in opposing the amendment the prosecutor was basing her arguments on evidence gathered after the confirmation of charges, which is against the Statute.
“To allow automatically the admission of wholly new evidence that was available with the exercise of reasonable diligence at confirmation, but which was not collected or presented by the prosecution, without any judicial oversight, would be to emasculate the confirmation of charges process and denude confirmation decisions of the required legal certainty,” say Kay and Higgins.
Bensouda last week opposed a request by Uhuru, his deputy William Ruto and Radio Journalist arap Sang to follow the trial proceedings via video link.
She stated the Rome Statute required the accused to be present in the courtroom for their trial. The judges are yet to rule on the matter.