ICC: We have enough proof on Uhuru

President-elect Uhuru Kenyatta

The thrust of Uhuru’s argument was that with the dropping of charges against former Head of Civil Service Francis Muthaura formally on Monday, those against him fell because their cases were intertwined.

The prosecution however argued the roles Uhuru and Muthaura played were different and assured the court it would be able to support the charges against the President elect.

On this spirit the prosecution led by Fatou Bensouda opposed any attempt by Uhuru’s defence led by Stephen Kay, resisted attempts to have his charges dismissed arguing its case against him were sustainable.

“The prosecution acknowledges that withdrawal of ‘Witness Number 4’ leaves it without any evidence to go to trial. The key evidence by the ‘OTP 4’ that led to the withdrawal of charges against Muthaura is the same for Uhuru,” Kay told the judges.

Muthaura case was formally withdrawn as a witness set to testify against Deputy President-elect William Ruto stepped down, claiming he had been coached to come up with fabricated charges and even had never been to Ruto’s home where he (the witness) had alleged planning meetings had taken place.

Enticing witnesses

Through lawyer Paul Gicheru, Mr Samuel Kimeli Kosgei, wrote to the International Criminal Court prosecutor withdrawing each and every piece of evidence attributed to him. He also asked to have his name removed from the list of the prosecution witnesses.

“I have never personally visited any of the homes of William Ruto and I did not witness any event and cannot vouch for the truth or otherwise of any allegation that has been made or attributed to me against him,” said the witness in the affidavit.

He further claimed in the affidavit that he was promised that he would be rewarded and settled either in Europe, America or Australia if he testified before the ICC and that his standard of living would improve tremendously.

The ICC, however, denied claims of coaching witnesses or even enticing or inducing them in anyway.

ICC in a letter signed by the Trial Attorney Cynthia Tai addressed to Gicheru, the court acknowledged receipt of the witness letter but rejected accusation that the ICC has been involved in inducing witnesses to provide false testimony.

In the Uhuru case Status Hearing Conference at The Hague, the victims’ lawyers stridently argued that the International Criminal Court was venturing on new territory since it is the first time, in Uhuru’s case, that an accused person has been elected President.

Never existed

In withdrawing Muthaura’s charges, the court conceded: “In the present case, the Prosecution has submitted that current evidence does not support the charges against Mr Muthaura and that it has no reasonable prospect of securing evidence that could sustain proof beyond reasonable doubt.”

The withdrawal was granted by Trial Chamber V Judges Kuniko Ozaki (presiding), Christine Van den Wyngaert and Chile Eboe-Osuji.

Kay explained that the evidence that was relied on by the Pre-Trial Chamber was rushed and nobody has reviewed the decision of the chamber. “Over 90 per cent of the evidence that was relied on by the prosecution was from ‘Witness Number 4’ to confirm the charges against Muthaura and Uhuru. Witness 11 and 12 were giving hearsay evidence,” he said.

The lawyer told the court the money that was purportedly given to Mungiki sect followers to perpetrate violence was actually given to Party of National Unity to support its presidential campaign.

He added that the meetings that were claimed to have taken place on January 3, 2007, never existed according to the witnesses and added that the one that was said to have taken place in December 30, 2007 was not a meeting. “It is unfair to withdraw the suit against Muthaura and not against Uhuru as the evidence that led to the confirmation of charges were the same. The prosecution has no evidence to sustain prospect of prosecution,” he argued.

Witness four

The lawyer asked the court to look at the true state of the case against Uhuru without ‘Witness Four’ and argued they would realise that there was no case against Uhuru as the prosecutor relied on the witness on majority of the evidence.

The lawyer added that claims that money was given to the sect members by Uhuru following issues arising from the operation ‘Kibaki Again’ by the eleventh and 12th witnesses explained that the money might have come from leaders from Mount Kenya region or Kikuyu elite. “The Pre-Trial Chamber links Uhuru to the dishing out of money to Mungiki members whereas the witness did not mention Mr Kenyatta,” he added.

The lawyer argued the witness had lied and had given conflicting evidence and this had made the Pre-Trial Chamber to rely on the wrong evidence.

“We warned the Pre-Trial Chamber of the quality of the evidence that they were presenting to the court but we were ignored quite considerably,” Kay added.

He disclosed that some of the witnesses have already approached the counsel and they have the evidence on tape and explained that there was a game going on.

However, the ICC prosecution through lawyer Adesola Adeboyeju, opposed the attempt to have the charges dropped and insisted they had evidence against Uhuru.

By Isaiah Lucheli and Wahome Thuku, Standard Media