ICC prosecutor Fatou Bensouda wants to bring more charges against former radio journalist Joshua arap Sang.
Ms Bensouda has written to the judges urging them to notify the suspect and his defence that the charges could be altered at any time.
The former Kass FM Radio journalist is accused alongside Deputy President William Ruto of crimes against humanity in relation to the 2007/8 post-election violence in Eldoret.
But Ms Bensouda wants to add another set of charges of ‘soliciting or inducing’ crimes against humanity and with ‘aiding and abetting’ crimes.
The notice will not affect Mr Ruto’s case.
Ms Bensouda argues that even though the case was underway, judges can notify that the charges can be modified at any stage.
Mr Sang’s lawyer Katwa Kigen argues that the prosecution has insufficient evidence to sustain a case against him.
Ms Bensouda has already been allowed to use testimonies of six hostile witness in Mr Ruto’s case.
Perhaps aware of the defence’s possible line of argument, Ms Bensouda was quick to clarify that the notice, should it be issued by the Trial Chamber judges, will not affect the facts of the case that were laid before the court.
“The Prosecution does not seek to modify the factual basis of the charges against Mr Sang. The Prosecution’s case against Mr Sang still rests.
“Any eventual re-characterisation would not exceed the facts and circumstances alleged,” she said, while requesting that the notice be issued before the defence teams enter a motion of no-case-to answer.
Ms Bensouda submitted that the prosecution has presented evidence to make it possible to charge Mr Sang with fanning violence through spread of hate messages in his radio program “explicitly revealing the desire to expel the Kikuyu”.
Other evidence she has cited claims that Mr Sang broadcasted propaganda against Party of National Unity (PNU) supporters, organised fundraising events that bankrolled the attacks and called on perpetrators to begin their attacks after the presidential elections results were announced.