Muthaura drops bid to delay ICC hearings

Head of Civil Service Francis Muthaura has withdrawn his bid to postpone the confirmation of charges hearings scheduled for September 21 at the International Criminal Court.

Mr Muthaura, Finance minister Uhuru Kenyatta and Postmaster General Hussein Ali had on Monday requested that their hearings be pushed to December arguing that the prosecution had changed its cases and needed more time to prepare.

Through their respective lawyers, the three said that the Document Containing Charges filed on August 19 reveals a change in the nature of the prosecution’s case forcing them to change their selection of live witnesses.

The three are alleging that the DCC and evidence on allegations that represent a “complete change in the direction of the Prosecutor’s case”. They add that it is clear that the entire Prosecution case now rests on the evidence of four witnesses, all of which were only disclosed to the Defence on August 19.

“The Defence has the right to be able to challenge this evidence at confirmation and to have sufficient time and opportunity to do so,” the suspects say in their submissions.

But on Wednesday, Mr Muthaura wrote again to the Pre-Trial Chamber saying that he was withdrawing his request.  He told the court that his defence team has been able to “interview approximately 15 new witnesses” and felt that that they were ready to proceed with the hearings as scheduled.

“The various extensions graciously granted by the Single Judge have made it possible for the Defence to interview 8 new witnesses within the last 24 hours preceding the expiration of the time-limit of 5 September 2011,” lawyer Karim Khan wrote on behalf of Mr Muthaura.

The defence lawyers had earlier argued that “the sheer volume and extensive change in the direction of the Prosecutor’s case” rises from the last scheduled disclosure on August 19 and has made it difficult for them to effectively prepare their case in the short period.

But in response, Mr Moreno-Ocampo has asked the judges to reject the applications saying that they lack merit. The Prosecutor says that the Defence inaccurately gives the impression that his office deliberately waited until the last moment to disclose its last tranche of incriminating evidence.

“The Prosecution is the party which must support each charge with sufficient evidence at the confirmation stage and the Prosecution must be the party to decide which form the evidence must take to achieve this goal. The Prosecution submits that the transcripts already disclosed best achieve this goal and the Defence’s request for witness statements in addition to the transcripts should be denied,” the Prosecutor says.

The new allegations cited by the suspects include that Mr Kenyatta and Mr Muthaura put in place concrete plans to ensure the smooth initiation and success of retaliatory operations to be carried out by the Mungiki and pro-PNU youth.

They also say that the allegation that through a series of meetings held in Nairobi including at State House between the end of December 2007 and end of January 2008, Mr Kenyatta organised and financed retaliatory attacks by the Mungiki against perceived ODM supporters in the Rift Valley.

They are also concerned about allegations that Mr Kenyatta specifically tasked a former Nakuru KANU MP to coordinate the retaliatory attacks and that he and Mr Muthaura organised planning meetings after the elections.

Mr Kenyatta is also concerned by the new information released by the Prosecutor that his party (KANU) offices were used for recruitment, mobilisation and payment of the militia gangs and pro-PNU youths involved in the attacks.

The new allegations cited by Mr Ali include that he orchestrated the killing of Mungiki leaders that were involved in the PEV by the Kenyan Police.

He is also concerned over claims that he spoke to Mr Muthaura twice about the upcoming riots and received orders not to arrest the person’s involved and that Mungiki members wore Kenyan army uniforms during transportation to attack destinations.