The Star (Nairobi)

25 February 2013

Kenya: ICC Four Seek to Postpone Case to June

DEPUTY Prime Minister Uhuru Kenyatta and his three co-accused at the ICC have upped their bid to postpone their trials which are all starting in April. In separate filings through their lawyers, the four sought to demonstrate to trial judges that the April trial date is not feasible.

Uhuru, former Eldoret North MP William Ruto, former Cabinet Secretary Francis Muthaura and former broadcaster Joshua Sang are accused of crimes against humanity over the post election violence of 2007.

In their arguments, the four are unanimous that the prosecution's protracted investigations and delayed disclosure have cost them their trial preparation time. They also say they have had catch up with an "ever-shifting case".

"Pressure upon the defence resources is compounded by the inclusion of new or radically altered post confirmation allegations and the sheer volume of prosecution evidence disclosed in the weeks leading up to the commencement of trial," Uhuru said in his filing.

The deputy PM alleges that, in her attempt to seal evidential gaps left by Witness number four, ICC Chief Prosecutor Fatou Bensouda had prejudiced him.

He says the allegation that his Mungiki intermediary assembled a dozen senior Mungiki members at Marble Arch hotel in Nairobi was entirely new:

"This allegation was not confirmed by the pre-trial chamber, nor mentioned in the confirmation decision. It's a totally new allegation that the defence was not made aware of prior to January 2013," his lawyers Steven Kay and Gillian Higgins say.

Uhuru accuses the prosecutor of suddenly turning vague in regard to another meeting allegedly held between him, Muthaura and Mungiki on January 3 at Nairobi Members Club. He says the new allegation on this meeting does not specify the date.

"Whether the new allegations are characterised as 'fact and circumstance underlying the charges' or 'supporting fact', the defence has not been afforded adequate time to prepare for trial," Uhuru said.

Besides, Uhuru cites the huge volumes of disclosed evidence and the large number of new witnesses in making his case to have the case postponed. The prosecution has dropped five of the original 12 witnesses and will now be calling 26 witnesses to testify against Uhuru.

Ruto and Sang through their lawyers David Hooper and Katwa Kigen said from six original witnesses, the prosecutor has expanded her witness base to 46. They said by January 9, identities of 19 witnesses had not been disclosed to them.

Ruto claimed that the prosecutor's evidence claiming to demonstrate his post-offence conduct and therefore depict his "consciousness of guilt" is entirely new and untested by the confirmation process.

"It is reasonable, in a case as serious and as extensive as this, to provide the defence with --as a minimum, the three months following disclosure that the chamber believed necessary -- which, given the state of disclosure, would provide a start date in June," Ruto and Sang said.

Muthaura through his lawyer Karim Khan protested at the delayed translation of most of 39 audio files disclosed to him on February 11 into English. Muthaura said when he contacted the prosecution on the matter, they demanded 15-16 weeks to do so.

He said from the prosecution's answer, it was clear that he should not expect to receive the translations any earlier than the first week of June 2013, almost two months after the 11 April commencement date of the trial.

"It is neither practically viable nor in line with the fundamental rights of an accused for disclosure to take place long after the commencement of trial, let alone the prosecution's delayed disclosure of a substantial amount of critical material with significant redactions to material information," Muthaura said.

None of the four accused--apart from Ruto who suggests June-- have given an indication as to when they want the trial to commence.

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