Kenyatta takes a huge gamble by volunteering to take the stand at the ICC

The big draw of the upcoming pre-trial hearings in the second Kenya case at the International Criminal Court (ICC) will be when Kenya’s Deputy Prime Minister and Finance Minister, Uhuru Kenyatta, testifies.

What has been novel to the ordinary Kenyan about the ICC process so far will fade once Kenyatta takes the stand on his scheduled day – two Wednesdays from now. The surprise at the politeness of Presiding Judge Ekaterina Trendafilova compared to the rudeness ordinary Kenyans have come to expect from judicial officers will be forgotten, at least temporarily, when the prosecution stands to cross-examine a son of Kenya’s first president and independence hero, Jomo Kenyatta.

The last time prominent and powerful Kenyans testified at public hearings into criminal activity that were televised in Kenya was when the government-appointed commission of inquiry chaired by Court of Appeal judge Philip Waki investigated the violence that is now the subject of the ICC hearings. Those hearings in mid-2008 held public attention.

However, the hearings Kenyatta and his fellow suspects face are not a trial or mini-trial. They are the phase of the ICC process where judges determine whether the prosecutor has evidence worth taking to trial. The judges will not adjudicate on the innocence or guilt of any of the three suspects. The ICC Prosecutor, Luis Moreno-Ocampo, will, however, certainly be seeking to show he has a wealth of evidence to put Kenyatta, Head of Public Service Francis Kirimi Muthaura, and former police chief Mohammed Hussein Ali on trial for five counts of crimes against humanity.

The case against these three individuals and another ICC case against three other prominent Kenyans are the only ones where powerful and influential Kenyans are being held to account for their alleged roles in the bloodshed that followed Kenya’s botched presidential election in December 2007. More than 1,000 people died by the time weapons were put down at the end of February 2008.

If the case is only at the pre-trial stage, why bother having Kenyatta on the stand? This will be a first in the ICC process where a suspect will be cross-examined at the pre-trial stage. There is no precedent to refer to at the ICC. Other international and hybrid courts trying war crimes, crimes against humanity, and genocide, such as the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone, do not have a pre-trial stage as it is structured at the ICC, so they too offer no precedent.

One answer may be Kenyatta’s legal team, following their client’s brief, are seeking to frame the ICC case as a political one. This was the loud rhetoric of Kenyatta and his supporters before he made his initial appearance at The Hague in April. The question they raised was if Moreno-Ocampo had comprehensively investigated the Kenya case why did he not interview Kenyatta? In fact, a suspect in a separate Kenya case, William Samoei Ruto, went further to seek an appointment with the prosecutor’s office. He was granted one and interviewed in November last year and one month later Moreno-Ocampo applied to the court to summon six prominent Kenyans, including Ruto and Kenyatta. The other question Kenyatta and supporters have raised is why it is him and a handful of others being targeted for possible prosecution. The suggestion being that there are other powerful individuals who should be facing a case at The Hague. Following a warning from the judges, the rhetoric has toned down but that view has not changed.

Jack Muriuki, a Kenyan defense lawyer at the International Criminal Tribunal for Rwanda, believes that the political questions are irrelevant now that Kenyatta and others are facing cases at the ICC.

“There may be some political concerns about how they got to court. But once they’re in court it is no longer political. Now the issues are evidential, not political,” Muriuki told ICC Kenya Monitor. “The political angle plays well in the country but it doesn’t necessarily play out well in the court.”

Muriuki says there is no precedent for a suspect taking the stand at the pre-trial stage at the ICC, so the only reference a lawyer can make is to their regular criminal practice. He says one reason a defense lawyer may choose to put their client on the stand is if the client is the best person to repudiate the allegations against them.

“It’s a huge risk but, on the other hand, it has the potential for huge rewards,” Muriuki said.

In the case of Kenyatta, “If he can take the stand and give a credible account of himself, he’s going to gain huge mileage politically and legally,” Muriuki said. “If he has problems answering some questions, if he hesitates then it might look very bad to the judges.”


  1. I really have my doubts whether a suspected or a accused person can be a formal “witness” in his own case, under the ICC procedural rules. This is _not_ a Common Law procedure, as the lawyers always forget, again and again.
    He can demand to be heard in his own role, for sure.


  2. I have checked it. The above report is *not* correct.
    One Kenyan journalist must have started this rumour, based on a press release by defence lawyers, namely that defence would question Uhuru Kenyatta as a “witness” in his cause, and now the whole flock repeats it one after the other. It is however simply not true. NOT.

    A suspect cannot be a witness, and thus the court schedule decision (which is online) does NOT include him as a witness. He will simply be interrogated as a suspect, both by prosecution and by his own lawyers, on 28th and 29th September. The witnesses are others.


  3. Dear Readers,

    Each defendant is allowed to present two witnesses during the confirmation of hearings to argue that there is no case to answer.

    According to the court schedule, Uhuru Kenyatta is scheduled to take the stand in his own defense on September 28th and 29th, when he will answer questions from both his own lawyers and from the prosectuors, then from his own lawyers again. This will then be followed by testimony from what the court terms Kenyatta’s “second witness”.

    It would seem unusual to refer to Kenyatta as a witness, but he is definitely taking the stand in his own defense.

    Thanks for reading.

    Jonathan Birchall/Communications/Open Society Justice Initiative


  4. To add a bit more to Jonathan’s post:
    Statements of a suspect (which must be unsworn) cannot be considered and weighed as “evidence”; they are to be assessed as part of defence arguments and submissions.

    So say both I, and the ICC’s then PTC I. In the Abu Garda non-confirmation decision of 8th February 2010, nos. 53-55.


  5. In europe justice is something real.You can joke with all except justice.When learned friends pull north push north.For example Madoff told the suisse jury it was agame with full knowledge that one day my time will come so its done with Billion in his swiss acount nobody shall botherhim after pay by jail.Kenya culprits are like sachdeva with million of Answered Questions tha when you saw me doing what did you do and where were you and what can prove to court that all your witness are true& because we are rich may be the poor are witnesing to revange????????NO they did verybad crime without fear or favour to their countrymen in the name of power majority of them drunk of power& drug trafficcer.Uhuru may loose all grabed land family bussiness empire etc he stands the bigest looser in whole story.


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