ICC prosecutor Fatou Bensouda has argued for the introduction of a motion which might create an opportunity for the early dismissal of the case against President Uhuru Kenyatta.
Uhuru is set to appear before the court on November 12 to answer to five counts of crimes against humanity. While conceding that the provision of entering a 'no-case-to-answer' motion was not provided for in the Rome Statute, Bensouda said she was not opposed to it if it was raised during the November 12 trial of Uhuru who is facing five counts of crimes against humanity.
"The authority to insert a "half-way" procedure aimed at determining whether the Prosecution has presented "a case to answer" derives primarily from the general authority under Article 64(3)(a)," Bensouda says.
The Article states the trial chamber can adopt such procedures "as are necessary to facilitate the fair and expeditious conduct of proceedings."
She however proposed that if the judges agreed to allow such a motion, each of the five charges against Uhuru must be handled individually and all parties must be heard if such a motion was filed.
But the victims lawyer, Fergal Gaynor opposed this and described it as an attempt to create procedures in the middle of the trial which were unforeseen in the statute or even the court's rules of procedures and evidence.
He said entertaining such a motion would amount to another confirmation hearing. "All of this would delay the timely conclusion of the present trial. The Trial Chamber risks creating an unfortunate precedent which would not enhance the fairness of the Court's proceeding," he said.
Gaynor said the motion was unnecessary as the prosecution could always withdraw the charges if its case is weak or the defense could elect to call no evidence and proceed without delay to the conclusion of trial. The chamber could also stay the proceedings at its discretion: