DEPUTY Prime Minister Uhuru Kenyatta is seeking to reverse his ICC case back to pretrial chamber which in effect will lead to a postponement of his trial which is due to start on April 11.
Through his lawyers, Uhuru has applied to have the Ekaterina Trendafilova-chaired lower chamber to "reconsider" his case because according to him, a major plank of the prosecution case has collapsed.
Uhuru says that prosecution witness number 4 has- over time- recanted his evidence and in doing so removed essential facts underpinning the confirmation of charges decision early last year which saw him committed to full trial.
Uhuru and former Cabinet Secretary Francis Muthaura are facing crimes against humanity charges. He claims that if his not reconsidered, it will result in a miscarriage of justice which was likely to embarrass the court.
"The defence respectfully requests the Chamber to: a) Refer the preliminary issue of the validity of the Confirmation Decision back to the PTC for reconsideration pursuant to Article 64(4). b.) Vacate the day set for trial," the application filed by lawyers Steven Kay and Gillian Higgins says.
He says the case against him cannot now stand on its own feet as it was confirmed on the basis of "fraudulent evidence."
He says the ICC prosecutor Fatou Bensouda had stopped relying on the evidence of Witness number 4 and therefore the case before the court was not the same one as the one which was confirmed.
He also wants the prosecution penalized for failing to draw the attention of the pre-trial chamber to crucial evidence undermining its case and therefore wasting the court's time.
"Judicial reconsideration of decisions is required when newly discovered evidence casts serious doubt on a prior determination as in the present case. Following referral of the preliminary issue to the PTC, the inherent power of a court to reconsider its own decisions is well-established at the international criminal courts and tribunals," he argues.
For example, Uhuru says that although witness number 4 claimed he was an eye witness to the November 26, 2007 State House meeting to plan the chaos, he later "resiled from his evidence and admitted he had lied and was not present at the meeting."
He says the same witness also admitted lying about another meeting at which he alleged he was present when he allegedly met withMungiki personnel on November 17, 2007.
Uhuru also accuses the pre-trial chamber of unfairly rejecting his alibis for the two meetings.
"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 Mr 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 PTC," says the application.
Uhuru says the fact that the pretrial brief for the April trials no longer specifically alleges that another meeting--the January 3, 2008 Nairobi club meeting-- took place is pointer to a weakened case.
Uhuru also says the prosecution severally misled Ekaterina's chamber on the nature of evidence it obtained from Witness Number 4. He says that Ekaterina severally failed to recognize that the evidence from the witness "went to the heart of the prosecution's case."
"The defence therefore submits that the single judge, by authorising non-disclosure of the full OTP-4 Statement failed to balance fairly the interests at stake, and as a result the subsequent proceedings failed to comply "with the requirements of adversarial proceedings and equality of arms," says the application.