INTERNATIONAL Criminal Court Chief Prosecutor Fatou Bensouda yesterday applied to start the trials of four Kenyans in August.
The defence teams of Uhuru Kenyatta, Francis Muthaura, William Ruto, and Joshua Sang had already applied to have the start of the trials delayed.
On Monday, Bensouda told the trial judges that, a start date immediately after the court's summer recess might be appropriate, although she is still ready to start trial earlier if the court wants.
She said that the Victims and Witnesses Unit will finalise protective measures for the remaining undisclosed witnesses in the next few weeks. That would allow full disclosure of witness statements to take place.
"An August 2013 start date would therefore provide the Defence with several months after receiving the Delayed Disclosure Witnesses' identities and unredacted materials to review those materials and conduct the associated preparations before trial begins," Bensouda said.
Bensouda added that it is important for the Kenyan public, particularly the victims of the post-election violence, to be assured that the trial will commence in the coming months.
"A date certain would assist all parties and participants in their preparations and planning," she added.
The trial of former Eldoret North MP William Ruto and radio journalist Joshua Sang was to start on April 10. The trial of Deputy Prime Minister Uhuru Kenyatta and former Cabinet Secretary Francis Muthaura was scheduled to start on April 11. The four are accused of masterminding the violence after the December 2007 election.
Their lawyers argued that the April trial date is not feasible. Only Ruto had suggested an alternative start date, in his case June.
In their arguments, the four are unanimous that the prosecution's protracted investigations and delayed disclosure have reduced 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.
Uhuru is running neck with Prime Minister Raila Odinga in opinion polls in the run-up to Monday's presidential election. If he and Ruto win, it will be the first time that the ICC will have put a sitting president and deputy president on trial.
Uhuru and Ruto have promised to continue cooperating with the ICC as the international community have warned of 'consequences' if they fail to do so.
Ruto and Sang, through their lawyers David Hooper and Katwa Kigen, said the prosecutor has expanded the number of witnesses to 46 from the original six. They said by January 9, the identities of 19 witnesses had not been disclosed to them.
Muthaura, through his lawyer Karim Khan, had protested at the delayed translation into English of 39 audio files disclosed to him on February 11. He said the prosecution had demanded 15-16 weeks which would come to early June 2013.
In her filing on Monday, Bensouda said that she could not be penalised for any delay in translating audio files that "relate to the attempts in late 2012 to bribe Witnesses 11 and 12, which began just days after the Prosecution disclosed the witnesses' identities to the Defence."
Bensouda also insisted that "there has been no factual shift in the Prosecution's case" and that the addition of new witnesses has not changed the nature of the charges confirmed by the Pre-Trial chamber.
She said the Prosecution had given them notice to the defence on the likely number of witnesses that she would call to testify.
She admitted that the VWU had delayed setting up protective measures for witnesses but blamed this on an "unprecedented level of witness tampering in this case and the associated witness security challenges."
"Notwithstanding the Prosecution's objections to the particular arguments by the Defence, it does not object to a reasonable adjournment of the trial in light of the fact that events beyond the Court's control, in particular the Court's operational restraints, may make an April start date untenable," Bensouda said.