PRESIDENT Uhuru Kenyatta has requested to be exempted from attending all sessions of his trial at the ICC which starts on November 12.

His lawyer Steven Kay told a status conference yesterday that Uhuru’s need to be exempted from full trial is even greater than Ruto’s since he is the head of state in Kenya.

Kay requested that Uhuru should be allowed to attend the trial at his discretion owing to his position.

Kay amended Uhuru’s earlier request to attend via video-link saying that even that should be pegged on “when he chose to do so.”

“Our arguments are different because we are head of state… . but essentially we are seeking a Ruto form of order,” Kay said.

Prosecutor Adesola Adeboyajo opposed the application terming it “disrespectful.”

She said it implied that heads of states should never appear before the ICC. She added that Uhuru should realise that failure to attend might necessitate issuance of an arrest warrant against him.

“Such request would violate bedrock of legal principle that all are equal, that official positions are no hindrance to an ICC process,” she said.

Kay said Uhuru had requested the video link in his previous capacity as deputy Prime Minister.

He said Uhuru’s defence team can handle the trial for him. He said the proceedings should not be seen as an attempt to punish an innocent man.

“It’s not about a spectacle, a barbarous exposition of the defendant,” he said.

Kay said it would grossly unfair if Uhuru is required to be present all through his trial, particularly if the case is dismissed Kay also wanted the trial postponed again pending their investigations into the whereabouts of some witnesses at the material times cited by prosecution. He said he had managed to obtain mobile data but it was not easy as “software has had to be developed to enable the information to come out.”

The prosecution insisted that trial must still start in November as this would be the fourth time the defence wants trial postponed. The victims’ lawyer also opposed the idea of a further postponement. Kay also requested more time to examine the 30 witnesses for the prosecution. He objected to a 50-50 time sharing between defence and prosecution as he had overwhelming evidence to dismantle the credibility of some witnesses.

“The scale of counter evidence we want to produce is to such an extent that it reveals two separate conspiracies to pervert course of justice. It cannot be dealt on 50 to 50 basis. The evidence deserves proper consideration,” Kay said.

The prosecution said it would call 30 witnesses over 186 hours, which would take two months and two weeks.

Prosecutor Ruth Fowlie said that the period is only for cross examination for the 30 witnesses. She said more time would be needed to present the prosecution evidence against Uhuru. The prosecution also wants to add two more witnesses against Uhuru next week.

Meanwhile Deputy President William Ruto suffered a double blow when top judges turned down his request to review an earlier plenary decision on where his trial should be held.

Then Pre-trial judge Ekaterina Trendafilova allowed the request of Chief Prosecutor Fatou Bensouda to appeal an earlier decision rejecting the restoration of events of December 30 and 31, 2007 in the charge sheet.

The ICC ‘presidency’, comprising of the courts president Sang Hyun-Song, 1stVice President Sanji Mmasenono and 2nd Vice President Cuno Tarfusser, rejected Ruto’s application to consider whether his trial could be held in East Africa.

On July 11, the ICC plenary of ICC judges fell short by one vote of the necessary two thirds majority required to move parts of the trial to Arusha or Nairobi.

Ruto now has to travel to the Hague for his trial which begins on Tuesday.

Trendafilova allowed Bensouda to appeal on the single issue of whether the judge initially erred in interpreting the term “permission” in the Rome Statute by including specifics of the case.

The Article says that after charges are confirmed and before trial begins, the prosecutor may with the permission of the pretrial chamber amend the charges.

Bensouda believes the events of December 30 and 31 are essential to support her case. She had said that failure to allow the appeal would have forced to change her case theory and strategy.

On August 16, Judge Trendafilova, acting as single judge of pretrial chamber, rejected the two dates saying the bid was belated and would disadvantage Ruto and his co-accused Joshua Sang. The judge said the belated bid “showed lack of diligence, organisation and efficiency” on the part of Bensouda.

“The Prosecution’s case is, and has always been, that Ruto and Sang are responsible for the widespread and systematic attack against civilian PNU supporters in Turbo town, Eldoret area, Kapsabet town and Nandi Hills town from on or about December 30, 2007 until the end of January 2008,” she said in her application.

The pretrial chamber had only confirmed charges with respect to those incidents which took place in the “greater Eldoret area” for the period of January 1-4, 2008!!

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