Steve Kay maintains that the withdrawal of witness No. 4 from the case is clear indications that prosecutor is not confident of her case against Kenyatta and Muthaura/FILE
Steve Kay maintains that the withdrawal of witness No. 4 from the case – as indicated by ICC Prosecutor Fatou Bensouda on Tuesday – and her submission that trials can be pushed to August are clear indications that she is not confident of her case against Kenyatta and Muthaura.
“News that the case against Kenyatta is being deferred until August shows that the ICC is without sufficient evidence for the case, and with the removal of witness No. 4 the case is without foundation,” he alleged.
In her submission to the trial chamber on Tuesday, Bensouda explained that she wanted the trial pushed to August to accord the defence enough time to prepare and also give the prosecution and the Victims and Witnesses Unit (VWU) adequate time to ensure proper security measures are in place.
Acceptance by the prosecution that the case against former Head of Civil Service Muthaura can be referred to the pre-trial chamber also gave the defence a basis to argue that the charges were confirmed using sham evidence.
“What is now beyond doubt is the confirmation was decided by the pre-trial chamber based upon fraudulent evidence,” Kay argued.
He said since Kenyatta and Muthaura are in the same case and are accused of working on a common plan to carry out retaliatory attacks, charges against both should be referred back to the pre-trial chamber.
“What is now beyond doubt is the confirmation was decided by the pre-trial chamber based upon fraudulent evidence,” Kay argued.
He explained that the two are in a joint case both accused of jointly planning attacks in Nakuru and Naivasha.
According to the lawyer, “Kenyatta and Muthaura are the defendants in the same case. Therefore, if the prosecutor has found the case against Muthaura so weak that it must be returned to the pre-trial chamber for re-examination, so it must be done for Kenyatta.”
“There is only one joint case against Muthaura and Kenyatta. Therefore there is no conceivable legal reason why Kenyatta’s case should proceed given this new development. This can only be for political reasons related to the election in Kenya in which Kenyatta is a presidential candidate,” he claimed.
Bensouda made submissions to the court in which she said she would have no objection to Muthaura’s case being referred back to the pre-trial Chamber after the withdrawal of witness No. 4.
However she dismissed Kenyatta’s request saying there were other witnesses (11 and 12) who gave evidence that led to the confirmation of charges against him.
During the confirmation of hearings, all the four defence teams of Kenyatta, Muthaura, Joshua arap Sang and William Ruto discredited prosecution witnesses whom they accused of lying to the court.
They also said they were coached to give false evidence.
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