DEPUTY Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto are considering a possible postponement of their trials at the ICC. Their trials are due to start on April 10 and 11, the very day scheduled for the second round run-off of the presidential election.
Their strategists are looking at ways of having the trials postponed for at least a year, especially if Uhuru wins the presidential election in the first round on March 4.
Ruto is Uhuru's running-mate for deputy president on the Jubilee Coalition ticket. However lawyer Katwa Kigen denied that his clients Ruto and broadcaster Joshua arap Sang were involved in such discussions. "No such plans for Ruto and Sang," said Kigen.
However insiders have indicated that if they win, Uhuru and Ruto would want to stabilise their government by creating structures that would allow them to run state affairs while resident in the Hague.
Uhuru and Ruto must appear in the Hague for the start of their trials on April 10 and 11, unless the Trial Chamber grants an adjournment which seems unlikely at this stage.
Uhuru recently told al Jazeera that he would attend the trial at the ICC but could run the government from the Hague if their Jubilee Coalition wins the election.
Insiders said that Uhuru and Ruto are likely to argue that they have not been given enough time to prepare for trial as ICC Chief Prosecutor Fatou Bensouda has been seeking to only disclose some of her witnesses after the trial has started.
They may also adopt a strategy used by former Liberian leader Charles Taylor who postponed his trial for seven months by sacking his lawyers at the last minute .
On June 4, 2007, just before his trial started, Taylor wrote to the ICC judges complaining that he was being denied a fair trial and advising the court that he no longer wanted to be represented by his assigned lawyers.
However, according to sources close to the ICC cases, this would be the last option for Uhuru and Ruto who reportedly have asked their lawyers to see how they can argue for more time to prepare their cases.
There is concern within Jubilee circles that former Cabinet Secretary Francis Muthaura, Uhuru's co-accused, and Sang, Ruto's co-accused, might not support this strategy.
Muthaura in particular wants the trial to proceed as quickly as possible and has even limited the number of challenges that might delay the case.
Uhuru and Ruto are also said to be waiting for the outcome of two applications to the ICC to relocate the trials to Kenya or Tanzania. They believe that there would then be no need for a postponement as they could easily run the government while remaining in East Africa.
Their lawyers are still working on how to challenge the limited disclosure of evidence by the prosecutor so far, especially over witness identities.
Bensouda presented her list of witnesses to the judges on January 9 but will only make the list partially available to the defence on February 11.
The prosecutor will release all the names by March 13, four weeks before the trials begin. Bensouda told the trial chamber judges that she may still adjust her list of witnesses and seek to delay disclosure of some witnesses.
Uhuru and Ruto may argue that this would not give them enough time to prepare their defence as they need to investigate prosecution witnesses.
Their lawyers would argue that they cannot cross-examine witnesses when they have only just learned their identities and nature of their evidence. Once they start, the trials of Uhuru and Ruto are likely to continue for several years.
Bensouda has already told the court that she will need an estimated 826 hours to present her case against William Ruto and Sang and 572 hours to present evidence against Uhuru and Muthaura.
The court hours at the ICC run from 9.30am to 12.30pm and 2pm to 4pm, a total of five hours a day, or 25 hours a week. In addition, defence lawyers will probably take the same amount of time to present their own witnesses.
That will come to at least 2,800 hours in court, that will take 112 weeks to dispose of, not counting public holidays or delays caused by sickness or legal challenges.