Friday, February 15, 2013

Uhuru, Ruto accuse ICC team of ambush


Former Head of Public Service Francis Muthaura and his lawyer Karim Khan at a press conference after the ICC confirmed charges against him on January 23, 2012. Mr Muthaura's lawyer Karim requested to be provided more time citing that the prosecution produced over 4,000 pages of new evidence and 28 new witnesses at the last minute while Uhuru Kenyatta and his Jubilee running mate want to attend all the session of the trial via video link. FILE PHOTO/ANTHONY OMUYA
By BERNARD NAMUNANE bnamunane@ke.nationmedia.com AND PETER LEFTIE pmutibo@ke.nationmedia.com  ( email the author)

Posted  Thursday, February 14  2013 at  22:30
In Summary
  • Presidential candidate given two weeks to file written submissions justifying position on trial through video link
  • It’s a totally different case with new evidence and fresh witnesses, protest defence lawyers as court holds talks on Kenya cases
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Mr Uhuru Kenyatta, the Jubilee Alliance presidential candidate, and his running mate want to attend all the sessions of his trial at the International Criminal Court through a video link.
The revelation came on Thursday as their legal teams joined lawyers for the former Head of Civil Service Francis Muthaura to put up a spirited effort to postpone the beginning of the trials to another date beyond April.
The three, and radio journalist Joshua arap Sang, have been accused of committing crimes against humanity during the 2007/2008 post-election violence.
Trial Chamber presiding judge Kuniko Ozaki said the bench had received an application from Mr Kenyatta’s lawyers seeking permission for their client to attend the sessions through a video link from Nairobi.
She directed his legal team to file written submissions of the request.
“Mr Kenyatta has raised a proposal of using a video link from Kenya on regular basis during the trial period. The chamber (Trial) requests any written submission on the matter and its legality to submitted by February 29,” she said.
Mr Kenyatta, who is one of the leading presidential candidates in the race to succeed President Kibaki, tested the video link technology on Thursday when he linked up with the ICC session from Nairobi.
With him was his lawyer, Evans Monari. His running mate William Ruto also opted for the technology.
However, Mr Muthaura and Kass FM Radio journalist Joshua arap Sang appeared before judges Ozaki, Christine Van den Wyngaert and Chile Eboe-Osuji during the Status Conference at The Hague to prepare for the beginning of the trial set for April 10 and April 11.
Mr Kenyatta has come under pressure from his rivals in the State House race and the National Council of Churches of Kenya who have questioned how he plans to run the government while still standing trial if he wins the March 4 presidential election which is only 17 days away.
On Thursday, Judge Ozaki upheld the bail terms extended to the accused during the ruling on confirmation of charges by the Pre-Trial Chamber which was headed by Judge Ekaterina Trendafilova.
Ozaki: Mr Kenyatta, can you hear? You understand the summonses and conditions issued by the Pre-Trial Chamber continues in effect for the trials until varied by this Chamber?
Kenyatta: Yes. I do confirm, you honour.
Mr Muthaura was taken through the same strides which means that the two will remain free.
Their legal teams asked the Trial Chamber to postpone the commencement date of trials to give them adequate time to prepare for the cases facing their clients.
Mr Karim Khan for Mr Muthaura and Mr Stevens Kay accused the Office of the Prosecutor of ambushing them with new evidence and witnesses at the 11th minute, leaving them with no time to prepare their defence.
The prosecution was represented at the Status conference by prosecutors Adeshola Adeboyaje and Alex Whiting.
Mr Khan and Mr Kay accused ICC Prosecutor Fatou Bensouda’s office of a blatant breach of professionalism and adoption of delaying tactics in the case arising from the 2007/2008 post election violence in which 1,133 people were killed and 650,000 displaced from their homes.
“We get to a situation where a fair trial is impossible not because of us but because of massive violation of rules of the Office of the Prosecutor. There is a pattern in this court where the Office of the Prosecutor is not taking its disclosure duties seriously,” Mr Khan told the Chamber.
He said Ms Bensouda had brought new charges against his client and introduced new witnesses while withholding the identities of some witnesses from the defence.
The lawyers also applied to the trial chamber to have the cases facing their clients separated instead of being heard concurrently.
“There are over 4,000 pages of new evidence and 28 new witnesses dumped on the defence at the last minute. How on earth can we proceed with the trial?” asked Mr Khan.
He also accused the office of the prosecutor for deliberately refusing to disclose the identities of its witnesses until the last minute, saying the material being withheld by the prosecution constituted 68 per cent of the evidence.
“A witness was interviewed in October 2011 yet we only got disclosure in December last year. What reason can possibly be there for the party opposite not giving us a disclosure earlier?” he asked.
Mr Kay adopted the same line of defence, saying that he needed enough time to interrogate new evidence introduced by the Office of the Prosecutor.
“The prosecution has abandoned a very important witness who on their own admission has lied. This has completely altered the case. We are now facing a completely different case,” he said. “It is apparent that the prosecution has highly suspect evidence that it is relying on.”
He said the defence was being denied an opportunity to interrogate the new evidence introduced by the prosecution.
He questioned the motive of the prosecution witnesses saying that it was evident that they were driven by ulterior motives.
“The motivation of witnesses has nothing to do with the post-election violence. The defence needs to establish whether the witnesses are genuine or not,” he said.
Responding, prosecuting counsel Manoj Sachdeva denied breaching any deadlines set for the disclosure of its evidence to the defence and would do so by March 11, exactly one month to the commencement date of the trials.
Mr Fergal Gaynor, the lawyer for the victims, opposed the application for the postponement of the trial saying that justice delayed amounted to justice denied.
“Many victims are elderly and sick and they have received medical assistance from the government which is totally inadequate. They actually fear that they will die before getting justice,” he said.
Ms Ozaki directed the defence and the office of the prosecutor to make their written submissions on the matter by February 20 and February 25 respectively.
The four facing trial at The Hague
William Samoei Ruto
Mr Ruto is former Eldoret North MP and former minister for Higher Education Science & Technology who is accused of crimes against humanity including murder, deportation or forcible transfer of population and persecution. He is Mr Uhuru Kenyatta’s running mate.
Joshua Arap Sang
He is the operations director at Kass FM.
He is facing similar charges of crimes against humanity including murder, deportation or forcible transfer of population and persecution just like Mr Ruto.
Francis Muthaura
He is the former head of Public Service and Secretary to the Cabinet.
He is facing charges of crimes against humanity including murder, deportation or forcible transfer of population, rape, persecution and other inhumane acts.
Uhuru Kenyatta
He is a Deputy Prime Minister and Jubilee Coalition presidential candidate.
He is facing charges on crimes against humanity including murder, deportation or forcible transfer of population, rape, persecution and other inhumane acts.

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