The victims’ lawyer has directly accused President Uhuru Muigai Kenyatta of failing to order Kenyan government officials to provide the International Criminal Court (ICC) with testimony and documents needed to get to the truth of the case against him.
Kenyatta’s lead lawyer, Steven Kay, denied that his client has been an obstacle. Kay said on Wednesday that the defense has instead gone out of its way to assist the court with evidence and testimony.
Victims’ lawyer, Fergal Gaynor, and Kay were speaking during a status conference that Trial Chamber V(b) had called to discuss defense and prosecution applications that raise the question as to whether the case against Kenyatta can or should proceed to trial. The judges of Trial Chamber V(b) wanted to ask clarifying questions about the applications and also hear whether lawyers had further submissions to make.
Trial Chamber V(b) scheduled the status conference after postponing the previously scheduled start of the trial, which was February 5. The judges made the decision upon receiving the prosecution’s December 19 request for a three-month postponement and the defense’s January 13 counter submission that the trial should be terminated. At Wednesday’s status conference, the judges also asked to hear submissions on the prosecution’s February 3 submission that the Kenyan government had declined to provide them with the financial records of Kenyatta, which was impeding their case.
It was while making a submission on these three issues that Gaynor made his accusation.
“Instead of giving legal, logistical, and moral support to the prosecution of this case, the accused has devoted enormous resources to bringing it to an end,” said Gaynor said in reference to Kenyatta.
“Instead of calling on others to come forth and assist this court in its search for the truth, he has tried as hard as he can to delegitimize this court in the eyes of his own citizens, and other African governments, by launching vitriolic attacks on the integrity of the court itself,” Gaynor continued.
Gaynor added that, “It is perhaps little wonder, then, that after thousands of hours of work by prosecution investigators and lawyers and the expenditure of untold millions of Euros, the ICC’s most high profile case has suffered such a devastating series of setbacks.”
In response Kay said that the case depended heavily on the testimony of two witnesses whom the prosecution found had lied about what they knew, so the problem was not the actions of his client but that of the witnesses.
“So the case that Gaynor talks about is a case and accusation that was based upon falsity,” Kay said. “We actually have been the party that have been seeking the truth in this case. It is us who alerted the court to the falsity of this evidence and its unreliability.”
Kay further said, “The politics of this matter should not be a consideration for the justice of the case. That is wrong. That is unfair.”
Earlier in the day, Presiding Judge Kuniko Ozaki had asked trial lawyer Benjamin Gumpert if the prosecution thought they could sustain the charges against Kenyatta if they obtained the financial records they had been seeking even without the testimony of two witnesses they had withdrawn. Gumpert said that the financial records could either strengthen the prosecution’s case or be exonerating evidence for Kenyatta.
Judge Robert Fremr asked Gumpert whether the prosecution intended to investigate the case in some other direction. Gumpert said that such a possibility existed, but it was slim.
“We have to take a realistic view based on our experience as prosecutors…which stones could still be turned,” Gumpert said. “We have made a decision that absent the financial records that remain pending, the stones become pebbles.”
Judge Ozaki asked the lawyers to make submission on what is the appropriate procedure to be followed if the charges against Kenyatta are to be withdrawn, and what in their view was the difference between terminating the proceedings in the case and withdrawing charges.
Kay and Gumpert were broadly in agreement that it is the prosecution’s discretion to withdraw charges before a trial had started. Gaynor submitted that the prosecution had to seek the court’s leave to do so.
Kay and Gumpert were also in agreement that terminating the proceedings was the responsibility of the judges because it did not just involve stopping proceedings but also issuing orders, such as what happens to someone who was in the court’s custody when the proceedings against them have been stopped.
Kay also made an additional submission. He said that the court should also issue orders declaring an accused person not guilty. Gumpert said that was an entirely separate matter, and he asked the court to be allowed to make written submissions on the issue.
Judge Ozaki consulted all involved on when they thought they would be able to make such submissions and then she ordered that the prosecution file their submission by February 10, and both the defense and the victims’ lawyer submit their responses within seven days after that.
Judge Ozaki also said the judges wanted to hold another status conference dedicated to the issue of the Kenyan government’s cooperation with the court. She said they would consult the different parties, including the Kenyan government, on what date would be suitable for all.