By ALLY JAMAH
Nairobi, Kenya: President Uhuru Kenyatta will now stand trial at the ICC in February 2014 if Kenya’s petition to the United Nations Security Council seeking a deferral of proceedings for a year fails. On Thursday, International Criminal Court judges postponed the start of the president’s trial to February 5 following an agreement by the defence and prosecution. The trial was scheduled to begin on November 12 but Kenyatta’s lawyers sought a postponement to investigate some prosecution witnesses while the prosecutor acknowledged she needed more time to prepare.
The development came as a joint Kenyan and African Union delegation held talks with the UNSC to press for Kenya’s petition to be considered by the council’s plenary.
Diplomatic sources indicated Kenya’s request for deferral of the cases against President Kenyatta and his deputy William Ruto could be considered in a closed-door session of the 15-member council next week.
The decision by the ICC judges gives Kenyan authorities more time to lobby for the deferral to prevent President Kenyatta from becoming the first sitting head of state to appear at The Hague-based court.
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In making the ruling, the judges of Trial Chamber V(b) dismissed an application by the Common Legal Representative of Victims Fergal Gaynor stating that victims had waited for far too long for justice.
The judges said they had the power to postpone the case at the request of either the prosecution or the defence. They added that they were guided by the need to ensure the trial is both fair and expeditious.
“ The Chamber notes that the parties are in agreement on postponing the trial date until February 2014 in order to give the prosecution additional time to investigate recent factual allegations raised by the defence,” read a decision signed by the three judges led by Presiding Judge Kuniko Ozaki.
They added: “ The Chamber accepts the parties’ submissions that a postponement is warranted and vacates the trial date of 12 November 2013. “
The judges expressed regret that while they wanted the trials to begin and be disposed of as quickly as possible, the adjournment was necessary to allow the parties in the case more time to prepare.
But they warned against further postponements in future saying that both the prosecution and defence must accelerate their preparation.
On October 24, 2013, Kenyatta’s defence had requested the Chamber to vacate the initial date of November 12. The president’s lawyers have also sought a termination of the case citing illegal conduct by the prosecution in gathering evidence.
Prosecutor Fatou Bensouda opposed the application.
Judges are yet to rule on the defence application that in the alternative seeks a special pre-trial session to assess the evidence.
Prior to the postponement, the judges had instructed the prosecutor to ensure that all Mungiki insiders testify from February after they granted the prosecution’s application for addition of two more witnesses.
The prosecution explained six out of the first 10 witnesses were Mungiki insiders and that she was not opposed to the application to defer the trial because she would want to present her evidence in a coherent manner.
The prosecution also accepted that certain factual matters raised by the defence merited further investigation and submitted that additional time would allow it to present its evidence in a logical and coherent sequence. Regarding the choice of the trial date, the judges said it was a compromise between the dates suggested by the prosecution and defence.
Bensouda has requested that the trail begin on February 3 while Kenyatta’s lawyers had preferred February 12.
“The Chamber considers that neither party has specifically justified its chosen date in a convincing manner. However, noting the minimal difference between these two time-frames, the Chamber has selected a tentative trial commencement date that represents a compromise between the proposals of the parties,” they said.
The judges rejected Gaynor’s application opposing the postponement arguing that it lacked merit. They said Gaynor’s application had been filed beyond the set deadline.
In a written statement to the judges who will sit in Kenyatta’s trial, the victim’s representative made an emotional appeal to reject Kenyatta’s request arguing that the delay would be a big disappointment to the victims who have waited too long for justice.
Gaynor said that the victims were deeply disappointed by the decision by the Office of the Prosecutor not to oppose Kenyatta’s request for a delay.
“Nearly six years have passed since the horrors of the post-election violence. Over three-and-a-half years have passed since the Prosecutor was authorised to open an investigation in Kenya. Over two-and-a-half years have passed since Mr Kenyatta was first summoned to appear at The Hague. And over 21 months have passed since he was committed for trial. The victims have already waited far too long for justice,” he argued.