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Wankuru Stephen Mwita.[/h]
NAIROBI, Kenya, Feb 5 – President Uhuru Kenyatta has accused the Prosecutor of the International Criminal Court (ICC) of stalling and clutching onto straws of a crumbling case, even after admitting there was no evidence to sustain it.
Kenyatta's lead lawyer Steven Kay noted on Wednesday that the prosecution had already revealed that there was insufficient evidence to sustain a trial and it seemed as if it was just buying time to save face.
Kay observed that the prosecution's case had been hinged on the evidence of two main witnesses who ended up being fraudsters, and that once the prosecution realised this, it shifted the blame to the Kenyan government for allegedly withholding evidence.
"We have come to a stage where the case presented reveals that it is not a case; it is a case with allegations based upon falsity and the prosecution knows that," he said.
"The problem is now though that having taken two sides to go into a trial, a political problem emerges. But the politics of this matter should not be a consideration."
It also worth noting that the prosecution through trial Attorney Benjamin Gumpert has also admitted that even if Kenya granted it the private financial records it was seeking, it is not certain if this will be able to sustain a trial.
The prosecution had initially sought a three-month adjournment before revealing at the status conference that it would not be possible to get solid evidence for the case within this time frame.
"But the request which is now before the Chamber is that the trial should continue to be adjourned without a date being fixed for the opening of the trial until such time as the government of Kenya complies," said Gumpert.
Kay further demanded to know the legal basis upon which the case was now being premised given the prosecution's admissions.
He argued that the case had been confirmed on the testimony of the fake witnesses, who have since been dropped, meaning that the foundation of the case had collapsed.
Gumpert found himself hard pressed to respond to this challenge, instead blaming the Kenyan government for "obstructing justice" for two years now by refusing to provide the financial details of the accused.
The prosecution wants to access Kenyatta's banking transactions because it is alleged that he withdrew about Sh4 billion which he used to finance perpetrators of the post-election violence.
"Which stones could still be turned get less and less promising, and we have made a decision that absent the financial records of which we have spoken the remaining stones unturned are better characterised as pebbles," he argued.
Kay however refused to buy into this argument noting that if such an amount of money was withdrawn then it would have raised eyebrows.
He further argued that the defence had had enough time to raise these concerns with the Trial Chamber V(b) within the two years it claims to have been requesting for it.
"It absolutely makes no sense at all that £20 million cash was taken out of the Kenyan banking system in a heartbeat and provided to people," said Kay.
"We have no evidence if this did happen from the financial sources readily available to the prosecution as to what would happen to the money markets in Kenya."
The Legal Representative of Victims Fergal Gaynor had also accused Kenya of withholding the evidence saying that this would have a ripple effect on the justice for victims.
Gaynor also made serious allegations against the government accusing it of tampering with phone data that the prosecutor had requested for before finally submitting it.
While making reference to Kenyatta's statements on the court, he added that the Head of State had referred to the ICC as a ‘demonic' and ‘racist' institution that targeted Africans.
According to Gaynor, Kenyatta's anti ICC sentiments had scared away potential Mungiki witnesses.
"The accused has spent a lot of money to send diplomats all over Africa to campaign against the ICC instead of using the money for victims. The withdrawal of witnesses appears to have been as a result of his anti ICC rhetoric," he said.
Kay however rubbished Gaynor's remarks telling him that the authenticity of the phone data had been verified by a single joint expert.
He also accused the victims' representative of stirring emotions and providing them with a false sense of hope.
The judges are set to set another date for a subsequent status conference, whose tentative date currently stands as February 13, 2014.
