THE International Criminal Court will decide early next month whether Deputy Prime Minister Uhuru Kenyatta and William Ruto can attend their trial in The Hague through video link.
The two were yesterday given until February 28 to make a written submission justifying their request in yesterday's status conference. Ruto and his co-accused Joshua Sang have also requested the court to postpone the start of their trial by at least four months meaning it could now start in July if the court accepts their request.
"We request a trial date four months after the definite disclosure of witness information. We need to have complete picture of our case before we start conducting the trial, including cross-examination," Katwa Kigen, defence lawyer for Sang, told the trial judges at the status conference yesterday. Ruto's lawyer David Hooper agreed with Katwa and also suggested to the judges that the trials be held in Arusha.
Hooper said that the "highest levels" of the government of Tanzania would be open to having the trial in Arusha to expedite the cases and reduce the cost to the accused.
They also asked for the trials to be conducted in chunks of three or four weeks each to allow breaks in between. Uhuru and Ruto did not travel to The Hague for yesterday's status conference and instead participated in the hearing by a video link from the Palacina hotel in Nairobi.
"The defence team of Kenyatta has raised the possibility of the accused to be permitted to participate via video link on a regular basis. Should the team wish to pursue this issue, the chamber requests for written submission in that regard including the legal basis and practical modalities of this request," Presiding Judge Kuniko Ozaki told Kenyatta's lawyers who were at The Hague.
The Jubilee presidential candidate and his running mate only spoke to state that they understand that the judges are maintaining the summons to appear in court on April 11.
Ruto and Sang also confirmed to trial judges that they will abide by the conditions set by the Pre-trial Chamber. "I confirm that I understand and will abide by those conditions," Ruto told the chamber via video link from Nairobi.
If their application is successful to testify by video, Uhuru and Ruto will be able to argue that they can participate in court proceedings while at the same time governing the country.
Both Uhuru and Ruto's defence teams have also argued that April is too soon to start their trials. Yesterday lawyers for Uhuru and his co-accused Francis Muthaura said that the April 11 start date was not viable due to delayed and partial disclosure of evidence by the prosecution.
Steven Kay for Uhuru and Karim Khan for Muthaura accused the prosecution of delaying disclosure and hampering preparation of their defence.
Khan told the Trial Chamber V judges Ozaki, Christine Van den Wyngaert and Chile Eboe-Osuji that about 68 percent of the prosecution case is fresh material.
"There are over 4,000 pages of new evidence and 28 new witnesses dumped on the defence at the last minute. The defence still needs to investigate this new evidence and it cannot be possibly done between now and April," Khan told the court.
Khan also said that the prosecution has withheld the "most meaningful evidence until the last possible moment." He said that his team had to interview 18 witnesses in 24 hours during the pre-trial period to avoid extending the hearing date.
"The prosecution in this court has been allowed to get away with this for long. The critical witnesses are coming here to lie and we need enough time to expose these lies. It is only in this court that the prosecution does not have a code of conduct," Khan said.
Kay argued that the prosecution has abandoned a key witness so it is no longer the same case that was confirmed by the trial chamber. "This case emerged when the prosecution filed its pre-trial brief. The nature of the allegations show that the motivation of the witnesses is outside the post-election violence which include Mungiki killings over the years," Kay said.
The prosecution remained quiet for most of the session only indicating that they would respond to the written submissions made by the defence. The prosecution also said that it would disclose the necessary information before the start of the trial.
Victims' lawyer Fergal Gaynor opposed any delay of the trial saying his clients were impatient as the post election violence happened five years ago.
Uhuru requested the judges to indicate how the two cases would be run but the Chamber said that it has asked for an extra chamber so the two cases can run in parallel.
"The Chamber mindful of rights of accused, considers interest of all parties, victims and justice for cases to proceed as soon as possible. The most efficient way to proceed is to constitute two separate chambers to hear the cases," said Judge Ozaki. She added that there was only one courtroom available for four hours every day.
"We have been in communication with the presidency recommending in particular that additional judges be assigned to compose two separate chambers. As all parties are aware, this court faces logistical challenges including availability of courtrooms. Use of Courtroom I is the only option," Judge Ozaki said.
Katwa and Hooper also accused the prosecution of changing the case by dropping some witnesses and expanding the scope of the cases to events during the 2005 referendum.
They said that the prosecution initially described the aggressors as ODM members but now talk of Kalenjin militia. "They have shifted from victims being Kikuyus, to Kikuyus and Kisiis, then Kikuyus, Kambas and Kisii and have now included Luos," Katwa said.
"The scope of the case has also changed. Initially it was 2007-2008 but not its four years from 2005. The preparatory dates have been expanded from four to over 20," he said.
Lawyers for Ruto and Sang argued that the alleged venues for the preparatory meetings have tripled during the disclosure. Prosecutor Lucio Garcia denied that the prosecution had changed its case, arguing that the defence knows events in the 2005 referendum were connected to the post-election violence.
Ruto and Sang also asked the ICC to allow them to travel 60 kilometres from the court instead of the 30km currently allowed. This would allow them to access to Amsterdam and Rotterdam.