Nairobi — Lawyer Katwa Kigen has questioned the credibility of witnesses the International Criminal Court (ICC) Prosecution intends to call to testify against his client, journalist Joshua arap Sang.
In his opening statement, Kigen urged the three-judge chamber not to believe everything they hear from the witnesses who he accused of attempting to frustrate Sang's co-accused, Deputy President William Ruto.
"It is evident that the witnesses were collected by political forces and NGOs and this forms the core of the prosecution's case. However, the prosecution has failed to sufficiently investigate its own witnesses and their motivation for participation in this process," he said.
An assertion, Kigen said, was proved by the number of witnesses who have declined to testify against his client and Ruto.
He further explained that going by the evidence the prosecution had shared with his team, they could not prove beyond reasonable doubt that his client was one of the perpetrators of the violence that followed the 2007 General Election.
"Sang prays very much that this court looks beyond the words of the prosecution's witnesses and after listening to the audio, the prosecution believes will prove my client's guilt and given the burden of proof lies with the prosecution, I am confident my client will be exonerated," Kigen said.
Kigen went on to deny the prosecution's allegation that Sang acted as the mouthpiece of a Kalenjin network that pre-meditated and orchestrated the bid to rid the Rift Valley of the Kikuyu ethnic group.
"The violence was a spontaneous reaction to the election results... Your honours will off course know that he's on legal aid. He did not have free hand at the station. He was under supervision and under management."
He said the fact that his client lost his job on account of the charges facing him went to prove that he did not have the muscle to have orchestrated co-ordinated attacks on his show.
"He had to follow the station's internal policies, procedures and ethics. He has subsequently been forced to resign from Kass FM because the prosecution continued to make allegations against him."
In his opening statement, Senior ICC Trial Attorney Anton Steynberg had mapped out a network, at the centre of which was Ruto, and the mouth-piece of which was Sang.
As fellow defence counsel Karim Khan did on behalf of Ruto at the opening of the trial, a large part of Kigen's defence strategy was to paint Sang in a positive light, describing him as a faithful Christian who could not have possibly called for ethnic cleansing.
He even played an audio clip of Sang calling for peace on his morning show immediately following the horrific burning of 10 of families that had sought refuge at a church in Kiambaa in January of 2008.
Kigen even took it upon himself to defend both President Uhuru Kenyatta and Ruto and by extension his client.
"When Kenyatta sought the presidency in 2002 there was no violence and neither was there violence when they both stood for the presidency earlier this year. Why then would they cause violence in 2007 when none of them were vying for the presidency?" he posed.
The defence counsel sought to persuade the chamber that Sang was a victim of Ruto's political detractors and was indicted to balance the numbers between Kenya Case 1 and 2.
And contrary to Prosecutor Fatou Bensouda's adamance that they were after only a few individuals and not Kenya as a whole, Kigen contended that the prosecution's own opening testimony proved that the entire Kalenjin community was on trial.
"It appears that one becomes a criminal by virtue of being an African Kalenjin. The prosecution has put a sinister spin on all aspects of Kalenjin culture... What is on trial is not just individuals; it is a trial on a community and its culture," Kigen argued.
He accused the prosecution of attempting to warp Kalenjin tradition, culture and even proverbs in order to prove Sang guilty and pleaded with the chamber to find, as he had argued, that the Prosecution had no case against his client.