DEPUTY Prime Minister Uhuru Kenyatta and former Head of Civil Service Francis Muthaura have once again differed at the ICC over the approach the prosecutor should take in sharing the evidence he has against them.
Uhuru has agreed with the prosecutor Fatou Bensouda on the two items they were ordered by trial chamber judge Kuniko Ozaki to consult over. However, Muthaura has disagreed with them on a number of issues.
The three sides had been asked to consult on the format and content of two documents- summary of prosecution evidence and the in-depth analysis chart. "The parties have consulted as instructed. Agreement has been reached as to the summary of the presentation of evidence (Pre-Trial Brief). With respect to the IDAC, agreement has been reached between the prosecution and the Kenyatta defence, but not with the Muthaura Defence," Bensouda has informed the judges.
The three sides have however concurred that the prosecutor will supply the pre-trial brief containing references to witnesses she intends to call and the evidence she intends to rely on. The brief will also explain how the evidence the prosecutor intends to use relates to the charges against the two. Bensouda said her office is opposed to the defence demands that she provides an IDAC at the trial stage. She has, however, agreed with Uhuru on the contents of the IDAC in case the judges order it.
An IDAC is a detailed document containing the list of evidence and how it is linked to the charges against the accused. Muthaura has opposed the format of IDAC as proposed by Bensouda and agreed on by Uhuru. He has insisted on the inclusion in the IDAC of text excerpts from the relevant evidence documents. Muthaura also wants the IDAC provided concurrently with an updated version of another document called the Document Containing the Charges. "The defence considers a properly prepared IDAC a foundational document for the proper preparation of the defence including the focusing of defence investigations and utilisation of defence resources. An essential element of a properly prepared IDAC is inclusion of the excerpts of the relevant portions of the documents cited," said Muthaura's lawyer Karim Khan.
Khan also insisted on an interim IDAC before the main one comes. Bensouda has opposed to the inclusion of IDAC at the confirmation stage. She said producing an IDAC is a burdensome and time-consuming task, "which outweighs the limited utility of the document at the trial stage." But in pushing for a detailed IDAC, Khan said allegations against Muthaura had been significantly re-framed in the confirmation of charges decision. "In view of the significant re-framing of the factual allegations, it is essential that both an amended DCC and linked IDAC are provided to the defence as soon as possible," Khan said.