, NAIROBI, Kenya, Mar 17 – Lawyer Steven Kay, QC, successfully defended President Uhuru Kenyatta at the International Criminal Court (ICC), because he believed he was innocent.
In an interview with The Hague Trials, Kay said he recorded Kenyatta’s movements between December 30, 2007 and the end of February 2008 and was convinced he did not incite violence but was instead calling for peace after the disputed presidential election of 2007.
“I tracked his movements every day, and I looked at what he said and did. Anyone investigating a case should do that. And if you do that with Uhuru Kenyatta, you would have seen a very positive case about a man who tried to stop the violence. I discovered that in my first month with my team of looking at the evidence. So it seemed to me that the allegations being made didn’t fit the evidence that I could see from those sources.”
At the beginning of the case, Kay said he was certain that the prosecution lacked basis of subjecting President Kenyatta to the ICC process.
According to him, the prosecution’s evidence lacked credibility and the allegations were false.
“The strength of this case was built on sand. And it was sand without any cement, bricks, anything to hold it up. This was a case built on rumour and hearsay that was open to individuals coming forward to claim they were eyewitnesses to events involving Uhuru Kenyatta that the prosecution never went to check.”
Kay’s inspiration to defend Kenya’s current President also stemmed from his admiration for his late father Mzee Jomo Kenyatta who was detained by the British but was later released over false evidence.
“I was an admirer of his father, Jomo Kenyatta, despite the conflict with the British. The witness who gave evidence against him retracted his evidence later but in very suspicious circumstances. The first President of Kenya, his father, was tried by the British, and he was also defended by a British barrister named Dennis Pritt,” Kay recalled.
“I was asked to represent him (Uhuru), and at that stage, he wasn’t President of Kenya then. But he came from a very distinguished Kenyan family,” he added.
Kenyatta was at the time deputy Prime Minister in Mwai Kibaki’s government when he was named among six Kenyans suspected to bear the highest responsibility during the 2008 Post Election Violence in Kenya.
Kay, whose strong admiration for Kenya has blossomed over the years through frequent visits with his parents as a young boy and in later years, said he also developed a liking for Kenyans which attracted him in defending President Kenyatta.
Born in Jordan, Kay who also represented Slobodan Milosevic (who later committed suicide) said defending President Kenyatta at the ICC was the effort of a team.
As the lead defence counsel in Kenya Case Two, Kay guided the team made up of Kenyan and international lawyers and investigators to carry out their own investigations and gather evidence to establish the innocence of President Kenyatta.
“We put together people from the office where I work, and we also used lawyers in Kenya. That team shared the work with me and did a very good job. They’re very professional. We also had an investigation counsel called Gary Summers who’s in our chambers, and he supervised the investigations for us on the ground,” Kay explained.
The British based international lawyer recalled hard times in dealing with the prosecution which he claims conducted itself unprofessionally and fell below his expectations of how an international criminal justice system should operate.
“Once we got into the procedures and workings of the court, I was very disappointed. I was disappointed by the conduct of the prosecution. I was disappointed by the outcome of the confirmation of charges hearing, and I was disappointed in the procedures that thereafter followed because there were many warnings from the defence that this case was built upon false and fabricated evidence,” he lamented.
“No one seemed to want to listen to us. They were all in a hurry to get this case of a high profile African leader up in court and in a trial. No one seemed to be looking at the warning signs that if you were a doctor looking at a patient you would be taken as being terminal signs of illness,” Kay added.
In recognition that the ICC process in Kenya was a highly politicised issue, Kay said he played it safe by ensuring the defence team stuck and focused only on its role of defending the president.
He also avoided media interviews which, according to him, would have dragged his team to the politics surrounding the process. The lawyer also appreciated the president’s non-interference in their work which he said helped them to concentrate.
“The legal team was entirely separate from the political team. I’m not someone who wants to put a case into a political context. I’m just a lawyer dealing with a legal trial and a criminal justice system. The whole point to me was that the politics of his country and those around him would have entirely different interests, entirely different motivations with the legal team. And the legal team has to keep its eye on the legal issues. That way you get to the truth of a case,” he explained.
Kay who said he was surprised that ICC Prosecutor Fatou Bensouda had not apologised publicly or admitted that her office had failed urged the prosecution to pursue lying witnesses especially witness P004.
He believed that the outcome against President Kenyatta was final after the ICC judges made their decision and it will be impossible for the prosecution to bring any further allegations in future.
“I can tell you Bensouda is talking total rubbish. There isn’t another case. There will never be another case, as there wasn’t a case in the first place. This is again an example of the OTP trying to protect its public image and send a message that is misleading,” he responded to the prosecution’s pronouncement that it could revive the allegations in future.
According to him on realisation that the prosecution was failing, its hope was that President Kenyatta would ignore the summons to be present in court during the last status conference.
He said he advised him not to skip the session as it ‘was a staged hearing by the prosecution and the court to see whether he would turn up. If he didn’t turn up, a warrant could be issued, and he’d look like a bad guy.’
Though the case against his client was dismissed, Kay’s work has not ended as he has to discuss with the ICC Registrar on protection of defence witnesses.
He explained of a looming disagreement as the registrar of the court says some defence witnesses will not continue receiving protection of the court.
“The registrar is going through a process of deciding whether they should remain protected or not. We have a conflict with him over that. He’s saying some of our witnesses should not remain protected, and we say they should be, in the same way the prosecution witnesses are protected,” he said.
Judges of the ICC last Friday dropped the case against President Kenyatta following the prosecution’s application admitting that it did not have evidence to sustain its allegations.