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Preparations for the trial of Jubilee presidential candidate Uhuru Kenyatta and former Head of Public Service Francis Muthaura start in earnest on Thursday even though their lawyers have asked the judges to delay the hearings.
The trials are set for April 10.
The defence teams, which gather at The Hague on Valentine’s Day for a status conference, have added a new twist to the case after a key witness dropped out and are raising questions on the integrity of the pre-trial court and prosecution.
The major contention is Witness Four whose testimony was used to confirm the charges against the two, who are being accused of crimes against humanity.
The witness is the pillar of the Uhuru-Muthaura case without whom it would not have been confirmed, the lawyers say.
During the confirmation of charges hearings, the witness testified that he was present at meetings at State House and the Nairobi Members Club where the two allegedly executed a common plan to commit crimes.
He claimed he was present at a meeting attended by the two at the club where the January 2008 attacks in Naivasha were allegedly planned.
The prosecution has withdrawn the witness after he confessed he lied about attending the two meetings.
The defence says that without his testimony, the cases would not have been confirmed and wants the trial judges to refer it to the pre-trial stage for dismissal.
The defence also accuses the prosecution of concealing critical exonerating evidence with the help of the pre-trial judges.
According to submissions to the court ahead of the status conference, the prosecution did not make an earlier statement by the witness available to the defence.
Critical revelations
In the statement, the witness had made critical revelations.
First, he admitted he was not present at both meetings. Secondly, the witness, a former Mungiki member, had indicated to the prosecution that he “heard” about the two meetings from a friend who was there.
The defence teams accuse the prosecution of concealing this information from them reckoning it would have dramatically changed the course of the case.
Apparently, both the prosecution and the defence interviewed the “friend” who denied knowledge of the meetings. A statement by the “friend” presented by the defence was rejected by the pre-trial judges.
In what is shaping up to be a possible ugly fight, the defence teams accuse the prosecution of introducing new allegations as a “patch up” on realising their case had been dramatically weakened after withdrawal of the witness testimony.
The defence contends that new allegations can only be introduced if they reinforce the confirmed case.
“Mr Muthaura has been called to answer a case which bears no resemblance to the one confirmed against him, which is manifestly unfair,” said the defence led by Mr Karim Khan.
Following the development, Mr Muthaura and Mr Kenyatta have asked the trial judges to remove any new allegations that were not subjected to test at the confirmation stage and dismiss the case.
In a document made public on Wednesday, Mr Kenyatta’s lawyer, Mr Steven Kay, said the pre-trial judges relied on “fraudulent” evidence.
“After the confirmation hearing, Witness Four resiled from his evidence and admitted he had lied and was not present at the meeting as alleged.”
Mr Kay said the witness also admitted lying about an alleged State House meeting between Mr Kenyatta and the outlawed Mungiki sect at which he claimed he was present.
“For the reasons set out above, the defence … requests the chamber to refer the … issue of the validity of the confirmation decision back to the pre-trial chamber and vacate the day set for trial,” Mr Kay said.
However, ICC Chief Prosecutor Fatou Bensouda on Wednesday said preparations for the trial would continue.
“The channel to respond to all submissions presented to the Chamber by any party to proceedings before the court is through a filing to the judges and not through the media,” she said.