, NAIROBI, Kenya, Feb 5 – Deputy Prime Minister Uhuru Kenyatta now wants his case referred back to the Pre-Trial Chamber of the International Criminal Court to avoid a miscarriage of justice after the prosecution dropped evidence of a key witness.
In an application filed at the Trial Chamber V on Tuesday, Kenyatta argues that the prosecution used evidence presented by witness number four whose testimony was allegedly dropped by the prosecution.
“The Pre-Trial brief no longer contains the allegation that the January 3 meeting took place as described in the facts underlying the charges, and refers only to meetings in “early January”. The witness list of the prosecution no longer contains witness 4, who was the only direct source of this evidence. The Summary of Areas of Testimony contains no reference to the January 3 meeting,” Kenyatta’s defence lawyers argued.
They said the Pre-Trial Chamber heavily relied on witness 4 who later retracted his statement that Kenyatta and former Head of Civil Service Francis Muthaura attended the meeting in which they met Mungiki members and directed them to carry out attacks.
“The Pre- Trial Chamber found as a fact underlying the charges that Kenyatta, Ambassador Muthaura and others met with Mungiki members at a supposed meeting at the Nairobi Members’ Club on January 3 and directed them to commit the crimes charged. The facts relied upon to establish the charges are derived from the testimony of OTP-4. The fact this meeting took place was challenged by the Defence using extensive evidence to contradict the account of OTP-4. The Defence evidence was rejected by the PTC. This was a key planning meeting relied upon by the Prosecution to establish the criminal plan,” the defence argued.
The lawyers in the updated Document Containing Charges (DCC) do not support the evidence used during the confirmation of charges hearings that alleged Kenyatta was present at State House where they allegedly met Mungiki representatives.
“None of the documents recently submitted by the Prosecutor setting out its case – the Pre-Trial Brief, Summary of Areas of Testimony and the Updated DCC – assert that Kenyatta was present at the 26 November meeting. In the circumstances, a key fact underlying the confirmed charges has been established to be based upon a lie. The Defence evidence, which went to the truth of the matter, was in the circumstances wrongfully rejected by the Pre Trial Chamber,” they asserted.
Based on their arguments, the team asked the Trial Chamber V to refer the case to the Pre-Trial Chamber which confirmed charges against Kenyatta, former Eldoret North MP William Ruto, Muthaura and Joshua arap Sang.
Meanwhile, the ICC has confirmed that the accused persons do not have to be physically present at The Hague during the Status Conference scheduled for next Thursday, but instead gave them an alternative of participating in the proceedings via a video link.
“The Chamber considers this to be a hearing requiring the accused’s attendance and the accused are ordered to attend the status conference, either in person or via video link. An agenda for the status conference will be issued after the Chamber has received the submissions requested in its order for observations on issues related to the commencement of trial,” Presiding Judge Kuniko Ozaki said in a ruling issued late Tuesday.