Kenyan Deputy Prime Minister, Uhuru M. Kenyatta called for peace, respect for the rule of law, and urged opposition members to engage in dialogue after the announcement of presidential elections results in December 2007, his lawyers told Pre-Trial Chamber II judges of the International Criminal Court (ICC) in The Hague today.
Following the conclusion of the defense case for Kenya’s head of public service, Francis Muthaura, Mr. Kenyatta’s lawyers officially commenced his defense, calling prosecution evidence against him “inherently flawed and unreliable.”
Gillian Higgins, one of the defense lawyers for the Kenyan Deputy Prime Minister, commenced her submission today by telling the judges that the defense team will “take apart, deconstruct, expose the assumptions…and unreliable nature of the prosecution’s evidence.”
She said the defense will “assess the reality of the evidence” against Mr. Kenyatta and establish that there is “no evidence of individual criminal responsibility of Uhuru Kenyatta.”
Ms. Higgins questioned the credibility of prosecution witnesses, two of whom she accused of having tried to extort money from Mr. Kenyatta’s defense team. Referencing the evidence given to prosecutors by Witnesses 11 and 12, Ms. Higgins said that both witnesses were first interviewed by the Kenyatta defense team in February 2011. She said the witnesses gave completely exculpatory/exonerating evidence account of Mr. Kenyatta, establishing that he was innocent and he had no links with the Mungiki, an organization whose members prosecutors say were directed by Mr. Kenyatta to commit crimes during the 2007-2008 post-election violence in Kenya.
According to Ms. Higgins, when the defense spoke to these two witnesses, they were told that the defense team will only reimburse the transport fares and food expenses incurred during their effort to provide evidence for Mr. Kenyatta. The witnesses were not satisfied and because the Kenyatta defense could not give them the money they wanted, they switched over to the prosecution where they believed they would get the money they wanted. At this stage, their evidence against Mr. Kenyatta became incriminating, Ms. Higgins said.
Ms. Higgins explained that with the approval of the Pre-Trial Chamber judges, an independent counsel was instructed to investigate the allegations that the witnesses had tried to extort money for giving evidence. The independent counsel, Ms. Higgins explained, issued a report in which he confirmed that the refusal by the Kenyatta defense team to pay the witnesses contributed to them switching over to the prosecution. They were part of an extortion attempt and had tried to pervert the cause of justice, Ms. Higgins referenced the report of the independent counsel.
“Rather than being protected here, they should be prosecuted here,” Ms. Higgins said about the witnesses.
Ms. Higgins went over the evidence of prosecution witnesses one after the other, highlighting what she called hearsay, unreliable, uncorroborated, and anonymous evidence.
She urged the judges not to confirm charges against Mr. Kenyatta based on the evidence presented by the prosecution.
“To do so [confirm charges] will be to lower the status of this [ICC] court,” Ms. Higgins said.
“To accept this evidence puts all of us at risk. This is not the stuff of the International Criminal Court,” she added.
Ms. Higgins submission was followed by that of Mr. Kenyatta’s lead counsel, Steven Kay QC.
Mr. Kay, in his submission, presented Mr. Kenyatta as a man of peace and one whose politics transcends tribal leanings. He told the judges that when violence broke out in Kenya following the announcement of elections results in December 2007, Mr. Kenyatta urged his opponents to go to court and challenge the results instead of embarking on mass action.
Mr. Kay played some video and audio clips in court in which Mr. Kenyatta said that people should engage in dialogue and not seek revenge.
On various occasions when prosecution witnesses said that Mr. Kenyatta was in meetings with the Mungiki, he was taking part in other events at places different from where he is alleged to be holding meetings aimed at planning violence, Mr. Kay told the judges.
Responding to prosecution evidence that Mr. Kenyatta was involved in fundraising events that were aimed at supporting the violence in Nakuru and Naivasha Districts in Kenya, Mr. Kay argued that the evidence shows that these meetings were aimed at getting humanitarian assistance for persons who had been displaced by the violence. In many of these meetings, Mr. Kenyatta was not present, Mr. Kay submitted.
Mr. Kay played a 15 minute video that showed Mr. Kenyatta speaking to a large group of irate youths. While a huge portion of the speech was in Swahili and Kikuyu, Mr. Kay gave the translations of the speech to the parties in court, explaining that Mr. Kenyatta was persuading the irate youths not to seek revenge for violent attacks against them. He was quoted to have said that “two wrongs cannot make one right” and that the youths should refrain from engaging in any violent activities.
This, Mr. Kay said, meant that Mr. Kenyatta was concerned about peace, not about violence as portrayed by the prosecution.
Mr. Kenyatta is accused by the Prosecutor of the ICC as being an indirect co-perpetrator of crimes against humanity committed during the post-election violence in Kenya from late December 2007 to late January 2008. The violence stemmed from disagreement over elections results between the Party of National Unity (PNU) and the Orange Democratic Movement (ODM). Mr. Kenyatta has denied the allegations against him and has indicated that he will testify as a witness in his own defense.
Before the end of today’s proceedings, Mr. Kenyatta was sworn in as a witness in his own case and he is scheduled to commence his testimony tomorrow.
The present proceedings are meant to determine whether or not the charges against Mr. Muthaura, Mr. Kenyatta, and former Commissioner of Police Mohammed Hussein Ali should be confirmed.