NAIROBI, Kenya, Oct 8 – The International Criminal Court Prosecution says it has some evidence and witnesses in the case against President Uhuru Kenyatta, even though not sufficient to sustain charges against him.
ICC Prosecutor Fatou Bensouda told the court that they still had a ‘body’ of evidence against Kenyatta.
“The prosecution has scrutinised this body of evidence and we judge this evidence is insufficient to make you sure,” she said in her plea to the judges not to terminate the case but allow an indefinite adjournment.
Senior Trial Lawyer Benjamin Gumpert outlined testimonies of several witnesses who he described to the court as being members of the Mungiki, a sect that Kenyatta allegedly used to carry out attacks in Nakuru and Naivasha.
He told the judges that several witnesses testified that Kenyatta financed Mungiki members to buy weapons and told them that there was an agreement with the sect that attacks would be carried out to protect Kikuyus.
“Witness P0152 was present at a meeting at a hotel attended by Mr Kenyatta. He contributed money and announced that there had been an agreement with the Mungiki that they would fight on the PNU/Kikuyu side during the Post Election Violence,” he alleged.
Gumpert said witnesses P0428, P0505, P0510, P0493 and P0494 told the prosecution that Kenyatta provided financial support to Mungiki members who were paid and facilitated to perpetuate the attacks.
He explained that witnesses P0429 and P0430 were invited to Mr Kenyatta’s home where funds were raised to finance the attacks in Nakuru and Naivasha.
According to the prosecution, Kenyatta worked with several MPs who coordinated the attacks between him and the Mungiki members.
“From yet another MP – who is alleged to be the coordinator of the violence in Naivasha – the witness said, during a meeting at a hotel in Naivasha he contributed Sh200,00 from his personal funds and a Sh1 million which he said came from Kamwana that means young man and it was Mr Kenyatta’s nickname. The money was given for funding of weapons,” he alleged.
He told the court that “that is the total of nine witnesses who will come before the court and the give evidence that I have summarised.”
He explained that the prosecution’s effort to make its evidence strong had been frustrated by the government which has refused to submit Mr Kenyatta’s phone records.
Gumpert told the court that the prosecution was convinced that Mr Kenyatta used other numbers other than the one ending with 891.
“As a wealthy man and a Cabinet Minister he must have had access to many phones. There is every reason to believe that data from telephones is still available and will reveal some relevance to the prosecution’s inquiries,” he argued.
But Kenyatta’s lawyer lashed out at the prosecution asking why it was not then proceeding with the case if it had evidence as explained to the court on Wednesday afternoon.
“If the quality of the prosecution evidence was such as it claims to be, why didn’t they go to trial? They didn’t go to trial because there were fundamental problems throughout that case,” he dared.
Kay entirely blamed the prosecution for failing to do its work in the process of gathering and packaging evidence against President Kenyatta.
“Not only the person who provided a number of those witnesses cited this morning and his involvement in the proceedings but the whole circumstances of evidence gathering as well as the production of evidence through alleged witnesses was one that utterly failed to meet any acceptable standards,” he explained.
Victims Legal Representative Fergal Gaynor in echoing the prosecution’s position said if Kenyatta wanted to have his name cleared, he should then “ensure all cell phone and tower data was disclosed as soon as possible.”
He argued that the telephone data was crucial in the case to support testimonies of the witnesses used by the prosecution.
“The good thing about mobile telephone data is that you cannot bribe it, or intimidate it. Mobile telephone data is at the heart of this case.”
The three Trial V (b) judges Robert Fremr and Geoffrey Henderson led by presiding Judge Kuniko Ozaki will review submissions made by the parties in the case against Kenyatta to determine if they will grant the prosecution’s submission to indefinitely postpone the trial or terminate the charges as submitted by Kenyatta’s defence.
The question of Kenya’s cooperation with the court will also feature in their review after the prosecution alleged that Kenya has failed to cooperate and threatened to refer the matter to the Assembly of State Parties and the UN Security Council.
The Government of Kenya on Tuesday also defended itself and outlined the series of documents it had given to the prosecution which it accused of ambiguity and making requests that were impossible to meet.