Deputy Prime Minister Uhuru Kenyatta, head of civil service Francis Muthaura and former police boss Hussein Ali will this week learn the extent of the charges they are facing at the International Criminal Court (ICC).
On Friday ICC Chief Prosecutor Luis Moreno-Ocampo is required to file the documents that will spell out the alleged offences for which he wants the three to stand trial.
The three have told the court they will take the stand at The Hague in September to give their defence in addition to calling witnesses to rebut accusations lodged against them by the prosecutor.
They have, however, been asked by the Pre-Trial Chamber to call two witnesses each instead of the eight they lined up.
The three suspects also appear to be complicating the government’s efforts to prove to the ICC that it is conducting investigations against them with lawyer Karim Khan, who is representing Mr Muthaura, saying this is “an unnecessary detraction” from their core business.
“We have advised our client not to record a statement at the CID for obvious reasons. He cannot face two jurisdictions at the same time over the same matter. We have been silent on the matter as our main focus is to clear Mr Muthaura of the claims that have been made against him,” said Mr Khan.
It is still unclear whether Mr Kenyatta has recorded a statement or is planning to. Like the other five suspects, he received an invitation letter from the CID.
Maj-Gen (rtd) Ali recorded a statement through his lawyers, but CID director Ndegwa Muhoro has said that he wants his former boss to answer in person. The CID has questioned Mr Ruto, Mr Kosgey and Mr Sang.
Mr Moreno-Ocampo told the court last Monday that he does not intend to call any live witnesses at the confirmation of charges hearings against the three that will run from September 21 to October 11.
But Mr Kenyatta, Mr Muthaura and Maj- Gen Ali have told the judges that it was through live witnesses that they would be able to contest the prosecution’s evidence. They also asked the judges to have all the witnesses listed on confidential lists included in their submissions.
The prosecutor has already provided the three suspects with 14 documents, 11 of these containing incriminating evidence. He is also seeking authorisation to disclose anonymous summaries of two witnesses for reasons he has confidentially communicated to the judges.
Mr Moreno-Ocampo also says he intends to disclose information contained in the statement of two other individuals who are likely to have evidence that tends to support the innocence of the suspects.
The prosecutor has to prove to the Pre-Trial Chamber that he has enough evidence to prove that the three bear the greatest responsibility for crimes against humanity committed from January 24, 2008 to January 31, 2008, and, therefore, that their case should go to trial.
He is accusing them of planning and financing murder, forcible transfer of people and persecution in Nakuru and Naivasha and rapes in Nakuru.
The three suspects have told the court that the witnesses listed are only provisional, as they are yet to complete investigations and are also awaiting the filing of the Document Containing Charges. The document details the charges that the prosecutor is bringing against the suspects; it will be filed on Friday.
Mr Kenyatta told the judges his witnesses will not only provide exonerating evidence about his efforts to bring peace to Rift Valley after the outbreak of the violence, but will also address allegations of his alleged involvement in fundraising meetings and his alleged role as a facilitator of the Mungiki.
Lawyers Steven Kay, QC and Gillian Higgins added that the witnesses will also provide evidence revealing the “inconsistency and ambiguity” of the prosecution’s case against Mr Kenyatta. They added that the confirmation hearing must not be a rubber-stamp exercise of the prosecution’s case but must ensure that the charges are “sufficiently compelling” and go beyond “mere theory or suspicion”.
Mr Muthaura said that in order to enhance efficiency of proceedings and avoid duplicity of evidence, his defence team has divided its witnesses into thematic groups, “reflecting the core evidentiary matters in debate” at the confirmation hearing.
“Such an approach will focus the chamber’s attention on the core matters in dispute,” Mr Muthaura says in his submission through Mr Karim Khan.
Maj-Gen Ali said the scope of his alleged role in the commission of the alleged crimes as presented by the prosecutor necessitates the calling of the proposed witnesses in addition to submission of documentary evidence and written statements.
“The defence submits that the strategy it chooses to counter the prosecution’s case is independent of whatever strategy the prosecution pursues in presenting its case,” Mr Ali says in the submission filed by lawyers Evans Monari and Gershom Otachi.
If the confirmation of charges hearings kick off on September 21, the three may find out whether they are going to stand trial at The Hague by December 20.
However, ICC spokesman Fadi El Abdallah said the decision may come next year if the judges are not satisfied with the oral submissions and ask for written ones.
The oral hearings for the case against suspended ministers William Ruto and Henry Kosgey and radio presenter Joshua Sang are scheduled to begin on September 1 and end on September 20.
The suspects had asked the court for an extension for the hearings to begin on October 13 which the court has since rejected. They wanted the hearings delayed for six weeks to allow them to interview six of their witnesses.
Extra-judicial killings carried out by police ahead of the 2007 elections and after will form part of the evidence that Mr Moreno-Ocampo will table against Mr Kenyatta, Maj-Gen Ali and Mr Muthaura. In his disclosure documents, Mr Moreno-Ocampo says he will seek to link the role of the three in the violence with the extra-judicial killings witnessed at the time.
Mr Muthaura and Maj-Gen Ali were at the helm of national security during the period as chairman of the National Security Committee and Police Commissioner respectively.