ICC chief prosecutor Fatou Bensouda has opposed the transfer of the ICC cases from the Hague to either Arusha or Nairobi. She filed an application to the trial judges on Thursday in response to a request by defence lawyers.
She said the Kenyan cases had "unique security challenges and unprecedented level of witness interference" although on principle she supported having the trials held as close as possible to the victims.
The trials of Jubilee presidential candidate Uhuru Kenyatta, his running mate William Ruto, former Cabinet Secretary Francis Muthaura and broadcaster Joshua wrap Sang on charges of crimes against humanity charges start at the Hague on April 10 and 11.
Yesterday, Bensouda said there had been extrajudicial killings, forced disappearances and threats against her witnesses. She also said there were also "persistent and systematic attempts" to bribe her witnesses from testifying at trial or to provide only false exculpatory testimony.
"The prosecution's concern is that the attempts to interfere with trial witnesses would increase if the trial were held in Kenya and, to a lesser extent, in Arusha, Tanzania, where the accused have significant influence, where the public interest in the trial is extremely high and where the Court has no infrastructure in place to ensure the security of trial witnesses," she said.
She said some witnesses and victims would be unwilling to testify in East Africa. Bensouda challenged the defense claim that the Kenyan public would welcome a regional trial. Bensouda said the issue of venue should not be used to delay the trial.
"The prosecution wishes the trial to begin as expeditiously as possible and thus the logistics for any proceedings in Kenya or in Arusha should be organized between now and the trial date," she said.
She was however not opposed to portions of the trial being held in Nairobi or Arusha. Such portions could include the opening and closing statements as well as testimonies of the accused and international experts.
"Hearings of this nature could strike the right balance between bringing the trial as close as possible to the affected region and thus satisfy the public interest in the case, and the need to protect witnesses," she said.
A lawyer for the victims in the Uhuru case, Fergal Gaynor, confirmed that 151 of the 155 victims she was representing would prefer the trial to be held at the Hague.
Bensouda still wants to add the use of guns in the Naivasha attacks into the final charges against Uhuru and Muthaura. On December 28, the trial chamber rejected the inclusion of the use of guns in Naivasha in the final charges.
On January 22 this year, Bensouda formally applied to the pre-trial chamber to re-insert the guns claim she had fresh evidence. She said further investigations did not end with the confirmation of charges and cited the precedent set in the Thomas Lubanga case that "the duty to establish the truth is not limited to the time before confirmation hearing."
On Thursday, the gun allegations were further given credence by Jane Waruguru Mwangi, the wife of former Mungiki leader Joseph Maina Kangethe aka Maina Diambo.
Diambo went missing on July 6, 2008 after he was called by a top government official to collect a Sh3 million donation for the burial of Mungiki leader Maina Njenga's wife Virginia Nyakio who was murdered a few months earlier.
According to the ICC, Diambo attended a meeting at State House to plan the revenge attacks in Naivasha. In an interview with the BBC reporter Karen Allen, Waruguru claimed that her husband was a tormented man by the time he disappeared.
"I saw big, large amounts of money (on him). I saw him washing guns," she said.
"He told me he was tormented by something he did. He did not tell me and he warned me that if l kept asking him questions, he would go crazy," said Waruguru.
Uhuru and Muthaura are opposed to the inclusion of the guns in the charges saying Bensouda ought to have established this before the confirmation of charges.
They claim the prosecution is grossly exceeding the period for post-confirmation investigations. The victims however support the continued investigations.
"Several expressed the view that the Chamber must be made aware of the full scale of the crimes that took place in Nakuru and Naivasha, including the true number of people killed and the methods employed to kill," said their lawyer Gaynor.