Nairobi — The International Criminal Court (ICC) prosecution did not object to arguments by the defence for postponement of the trial date over claims of irregularities in submission of evidence.
During the status conference for Deputy Prime Minister Uhuru Kenyatta and former Head of Civil Service Francis Muthaura on Thursday, the prosecution however defended itself explaining to the court that its disclosure of witnesses was within the set timelines which should be one month before the trials.
"Our disclosure process has been in tally within the court's rulings and parameters namely disclosure of witnesses. The court has given us up to March 11, which is one month before the trials to disclose the identity of our witnesses. We leave the matter of the start date in your honour's hands," the prosecution explained.
The defence teams the Jubilee presidential candidate and Muthaura urged the court to postpone the trial indefinitely due to new evidence introduced by the prosecution and also the delay in disclosing the witnesses.
Appearing for Muthaura, lawyer Karim Khan told the court they were unable to proceed with the case scheduled to begin in April because much of the evidence was strange to them.
"The amount of new material in our calculation amounts to 4,466 pages completely new, which is 68.7 percent that was disclosed in January. The amount disclosed pre-trial was 1,996 pages. Of course prosecution has dropped seven witnesses," he protested.
He explained that his client will not have a fair trial in April due to massive violations by the prosecutor in releasing incriminating evidence and disclosure of its witnesses.
The lawyer accused the prosecution of releasing different evidence which had not been disclosed to the defence during the confirmation of charges hearings and therefore would work to the disadvantage of the defence team that will not have enough time to interrogate accusations against its client.
"Once again, the prosecution has withheld key evidence until the last possible moment. On the eve of the trial, 'hey presto!' like a rabbit out of the hat they come up with new evidence. We cannot have a fair trial in April," Khan protested as he complained there were also 28 new prosecution witnesses introduced to the case.
He told the court that they also needed more time to expose witnesses who he claimed were lying to the court, "the critical witnesses of the prosecution are coming to this court to lie, we need time to expose these lies."
Kenyatta's defence counsel Steven Kay also asked the court to postpone the trials explaining that there was no ample time for them to understand the huge chunks of new evidence released by the prosecution for the trials.
"We are asking this court to suspend the principle of expediency and the right of expedition to enable us to have adequate time to prepare our defence as well as to have proper disclosure during that period so that we prepare for the trials," he requested the court.
Kay said the case presented before the trials looked different from the one that was as the Pre-Trial Chamber. "It's not the same case we faced at the confirmation of charges hearing."
He told the court that the defence needed time to prove that the prosecution witnesses especially with reference to witness number four were lying to the court.
The Trial Chamber will rule on the request to postpone the date of trials set for April 10 and 11 after reviewing the submissions made by the parties to the case who included the victims' legal representative in his request to ensure victims get justice the soonest possible.