THE HAGUE, Feb 6 – Defence lawyers for Kenyan presidential hopeful Uhuru Kenyatta have asked the International Criminal Court to drop the trial and review the case against him, saying a key prosecution witness lied.
In a document made public on Wednesday, Kenyatta’s lawyer Steven Kay said a prosecution witness, only named “OTP-4″ had lied about being present at meetings between Kenyatta and the Mungiki, Kenya’s powerful criminal underground in the run-up to the controversial 2007 presidential vote and its violent aftermath.
Judges of the Hague-based ICC last year decided to try Kenyatta, 51, and his co-accused Francis Muthaura, 66, on five counts of crimes against humanity over their role in the 2007-08 unrest that gripped the east African country after the polls, killing more than 1,100 people.
They are to go on trial on April 11, a day after two other accused, ex-minister William Ruto, and radio boss Joshua arap Sang face similar charges.
Former rivals Kenyatta and Ruto in December announced an alliance as running mates in the polls set for March 4 in a move suggested by sceptics as a marriage of convenience to form a united front against the ICC.
At the hearing to confirm charges against the accused in January last year, prosecutors said Kenyatta and Muthaura used the Mungiki – described as a mafia-like group similar to a sect and inspired by Kenya’s Mau-Mau fighters – to foment violence and attack opposition members during the country’s deadliest unrest since independence in 1963.
In one case, the ICC’s pre-trial judges found that Kenyatta and Muthaura, together with President Mwai Kibaki met Mungiki members at Nairobi’s State House in November 2007.
Prosecutors used OTP-4′s eyewitness account of the meetings to show judges the link between Kenyatta, son of Kenya’s founding father Jomo Kenyatta, and the Mungiki.
But Kay said, “After the confirmation hearing, OTP-4 resiled from his evidence and admitted he had lied and was not present at the meeting as alleged.”
“OTP-4 has also admitted lying about another meeting at which he alleged he was present between Kenyatta and Mungiki personnel,” Kay said.
Furthermore, OTP-4, “the only direct source”, was no longer on the prosecution’s witness list of an alleged meeting on January 3, 2008, where Kenyatta was supposed to have directed the Mungiki to commit the crimes for which he have been charged.
The prosecution has misled judges by using OTP-4′s statements to get them to confirm the charges against his client, Kay said, calling it “fraudulent evidence”.
“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,” Kay said.
Responding, chief prosecutor Fatou Bensouda’s office said Wednesday its preparations for a trial date for Kenyatta, Muthaura and the two other accused in the case, Ruto and Sang on April 10 and 11, were continuing.
“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,” Bensouda’s office added.
In Nairobi, an official for the pro-Kenyatta organisation “Justice 4 Uhuru” welcomed Kay’s filing, saying “the case (against Uhuru) should be dropped altogether.”
“Without this witness, the case is entirely based on gossip and hearsay,” the official contended.