Kenyatta’s lawyers push for court to drop charges
Lawyers for Kenya’s president-elect, Uhuru Kenyatta, said yesterday that charges of crimes against humanity against him should be withdrawn after the collapse of the case against his co-accused. However, prosecutors at the International Criminal Court (ICC) in The Hague said they had new evidence to present.
Kenyatta – whose election victory earlier this month is being challenged by his rival – faces charges at the ICC over bloodshed in the aftermath of Kenya’s 2007 election.
His lawyers said yesterday that these charges were clearly now based on hearsay, after a key witness in a linked case against ex-civil servant Francis Muthaura retracted their testimony.
Kenyatta and Mr Muthaura were among six suspects initially charged by ICC prosecutors with orchestrating violence after the 2007 election, when about 1,200 people were killed. The two prosecutions are based on a lot of the same evidence and both men have always denied any wrongdoing.
Steven Kay, the British barrister defending Kenyatta, said prosecutors should have dropped his case when they withdrew charges against Mr Muthaura, in a decision announced yesterday.
“What was withdrawn against Mr Muthaura should have been withdrawn against Mr Kenyatta,” Mr Kay told a hearing.
Prosecutors responded that their case was strong enough to go to trial even without the key witness, especially if they were allowed to introduce new evidence they said had been collected since the case had first been allowed to proceed. “If we open the door to new evidence, it will quickly become a flood,” Sam Lowery, for the prosecution, told the court, quoting a prosecution witness describing how he had been given money to buy guns.
“Your honours, you don’t need guns for election campaigning,” Mr Lowery said.
The Kenyatta case is an important test for the ICC, which was set up more than a decade ago as the world’s first permanent war crimes tribunal, but has so far secured only one conviction.
The son of his country’s founding president, Kenyatta is set to become the first head of state to be actively defending charges at the ICC, making his case one of the highest-profile it has dealt with.
His election victory has presented a dilemma to western leaders, who see Kenya as a bulwark in a regional struggle against militant Islam.
The defence said the charges against him were being maintained because of his prominence. “What we have here is a very unfair and biased decision that is keeping us in this case as a symbol,” Mr Kay said.
On 11 March, ICC prosecutor Fatou Bensouda asked to drop the charges against Mr Muthaura, which had been brought by the lawyer’s predecessor, after a key prosecution witness recanted. Judges agreed to drop the charges in a decision published yesterday, but Mr Bensouda said the decision would have no impact on Kenyatta’s case.
Kenyatta’s team said it was now clear the decision to allow the case to come to trial had been taken in error.
“We have lost faith in the decision-making,” Mr Kay said. “We warned the court about the quality of the evidence.”
Fergal Gaynor, representing the victims of the post-election violence, told the court Kenyatta’s status meant he could easily influence the case.
Mr Gaynor said: “Never before has there existed such potential for an accused to use his own power, influence and wealth to affect the outcome of the case against him.”
Kenyatta, elected on 4 March by a slim margin, faces a big challenge in bridging Kenya’s ethnic divides even without the ICC case. Defeated presidential contender Raila Odinga challenged the election result in Kenya’s top court on Saturday, alleging widespread ballot rigging.
Lawyers for Kenyatta may now argue the prosecution case has changed so much in the past year that the case should be moved back to the pre-trial “confirmation of charges” phase.
The prosecution would then have to show again that it has a strong enough case to go to trial.
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