Nairobi — The International Criminal Court Prosecutor Fatou Bensouda has indicated that she will not oppose a request by President Uhuru Kenyatta to have his trial start in February 2014, setting the stage for its postponement.
She however insists that the trial must start on February 3, 2014 and not a day later because Kenyatta will have had enough time to prepare and because the start date cannot be pushed any further.
Through an application to Trial Chamber V(b), Bensouda explained that it would not be possible for her to call six of her first 10 witnesses before February 2014 because the judges had directed her not to do so, in order to give the defence time to investigate them.
This was after she was allowed to bring in two new witnesses to her case after President Kenyatta's case was already confirmed, raising a huge outcry from the defence team which consequently asked for more time to look into the witnesses.
The ruling put her in a fix leaving her with only four of the first 10 witnesses to call to the stand on dates between November 12, 2013 and February 2014 if President Kenyatta's trial was to kick off as scheduled.
"The Prosecution now faces the prospect of being unable to call the witnesses who are at the heart of the dispute in this case in the three months following the commencement of the trial if that occurs on November 12, 2013," she argued.
Bensouda also admitted to the judges that the other witnesses who she could call, if the trial was to start on November 12, would be witnesses who would give third party accounts and not necessarily help her case.
"The Chamber will spend until the end of January 2014 hearing evidence from a succession of witnesses whose evidence, while important does not relate directly to the acts and conduct of the accused," she said.
Bensouda also revealed to the judges that she was unable to get replacement witnesses to cover the time that would have been spent on the six witnesses and ensure that the trial kicked off as scheduled.
She instead argued that the short notice left her with no option but to support the postponement of the trial.
She added that she did not want witnesses to make their way to The Hague without there being a proper schedule within which they could testify because it would be an inconvenience to them.
"Rather than presenting a case of which the chronology is dictated by the availability of witnesses and where there may be significant delays caused by the unavailability of witnesses whose travel arrangements have been made at short notice, the Prosecution position is that the presentation of evidence should take place in a logical and coherent sequence," she said.
She however opposed Kenyatta's request for an evidential hearing on grounds that it would stop his trial before it even starts saying this request could be granted even after his trial has commenced.
President Kenyatta wants to have an evidential hearing arguing that he has proof that the bulk of the prosecution witnesses are shoddy characters who have been paid to incriminate him and he does not believe he stands a fair trial.
The Trial Chamber is yet to issue this decision.
The Prosecutor also maintained that Kenyatta's State duties were not reason enough why his trial should be postponed because he knew that he was facing trial even when he was elected into office.
"He assumed those duties in the full knowledge that he was facing trial at the International Criminal Court," she said.
This development comes at a time when the United Nations Security Council will be meeting 'informally' to discuss a request by the African Union (AU) to defer the trial against Kenyatta and his Deputy William Ruto.
The meeting will take place in New York on Thursday and will most likely set the pace for a plenary session which will only be attended by the Security Council members and which will determine the way forward regarding the Kenyan cases.
The AU wants the court to defer the cases so as to allow the two Kenyan leaders attend to their State obligations.