New twist in Uhuru case as lawyers differ over key document

A fresh storm has erupted in the International Criminal Court (ICC) case against President Uhuru Kenyatta pitting his defence lawyers and the victims’ lawyer Fergal Gaynor.

At the heart of the new tussle is whether a detailed document explaining the prosecution’s case against Uhuru, known in ICC parlance as “pre-trial brief”, should be made public.

The pre-trial brief for the case against Deputy President William Ruto was issued on September 9 last year, naming prominent political and business people as members of Ruto’s “network” that allegedly facilitated the 2007/2008 post-election violence.

The document was filed confidentially to the parties on August 26, 2013 by the prosecution. Gaynor now insists the document must be made public, citing victim’s right to know the truth.

On the other hand, Uhuru’s lawyers Steven Kay and Gillian Higgins argue that the pre-trial brief has been overtaken by events and that the application is motivated by urge to assassinate the character of the accused.

Gaynor made the application to have the pre-trial brief revealed to the public on October 29. This followed an October 21 invitation from the judges to the participants in the case to request re-classification of documents in the case.

“The pre-trial brief is directly relevant to the victims’ interests in this case, in particular their right to know the truth about the crimes committed against them and the identities of those most responsible,” Gaynor claimed.

Brutal crimes

Gaynor said the likelihood of a trial where evidence will be relayed “is not high” and that they have received “almost nothing in the way of truth or accountability for the brutal crimes committed against them.”

He said he wants to use the pre-trial brief to explain the intricacies of the case to the victims, nine of whom had died and many others who are now “elderly and infirm.”

Kay and Higgins want none of it. According to their response dated November 14, it is now “extremely unlikely that the allegations made in the PTB will ever be presented or challenged at trial.”

They said the proceedings of the status conference held on October 7 left no doubt that the trial is not in the offing. Besides, they argued, there is no provision in the courts laws or rules that require public dissemination of the document.

“The Legal Representative for Victims must not equate the allegations contained within the pre-trial brief with the truth. The pre-trial brief is a document designed to assist the defence in its preparation for trial; it is not a statement of fact,” they further argued.

On its relevance, Kay and Higgins argued that the pre-trial brief heavily relies on proposed testimony of witnesses who have since admitted lying and is therefore outdated. As such, it cannot be considered to hold the truth Gaynor is pushing for.

The two lawyers also argued on the possible impact of making the pre-trial brief public. They claimed that it would have “profound negative ramifications” in the integrity of any future proceedings in the case.

“He is unfairly attempting, through the inappropriate use of ICC procedures, to damage the reputation of the accused,” the two lawyers said.

In his application, Gaynor cited prosecution insinuations that they still have a considerable body of evidence against Uhuru. He said the prosecution had also publicly referred to interference with key witnesses and elimination of Mugiki associates of the accused.

The revelations were made at the close of the October 8 status conference when senior trial lawyer Benjamin Gumpert read out a “summary of the likely evidence of significant witnesses in this case” at the invitation of chief prosecutor Fatou Bensouda.

Dignity of access

“It is respectfully submitted that the surviving victims are entitled to the dignity of access to the prosecution’s more detailed assertions relating to these issues, as set out in its pre-trial brief,” Gaynor said.

But the defence tore into Gumpert’s summary and said it amounted to “nothing short of a publicity stunt”.

They said the summary of witnesses 152, 428, 505, 510, 548, 493, 494, 429 and 430 as presented by Gumpert was designed to embarrass Uhuru. They said no notice was given to the defence to enable them respond, that the summary was not relevant to the matters at hand at the time and that it was inappropriate in light of prosecution admission that the evidence was insufficient.

“This action was without precedent and constituted a wholly inappropriate exercise, demonstrating further the lack of regard for normal prosecutorial standards of conduct,” Kay and Higgins argued.

Gaynor had also latched on the wide media coverage of the case to push for publication of the document. He had said that owing to extensive coverage of the case, victims kept bombarding him with questions whose answers are contained in the pre-trial brief.

But Uhuru’s lawyers argued the damage on his reputation would “unduly amplified” if the document is publicised. They said what is contained in the document are rumours authored by witnesses motivated by “pecuniary interests.” “The pre-trial brief does not contain the ‘flesh’ that the legal representative for victims wants to place on the prosecution’s remaining ‘bones,” the two British lawyers argued.

They complained of a “strategy of publicising the prosecution’s case” describing it as a “very dangerous tactic” that has the potential to cause false witnesses to attach themselves to the allegations.

Gaynor has not given up on his request though. On Tuesday this week, he sought the judges permission to respond on some of the issues raised by the defence among them the accuracy of assertions that his motivation is to create an adverse publicity for Uhuru.

He is also challenging defence arguments that there is no provision for publicising the pre-trial brief in the court legal framework, that publicising the document would injure rights of the accused. 

Bensouda has said she is not opposed to Gaynor’s request. She told the judges on November 11 that she has already prepared a public version of the document:

“The prosecution refrains from submitting it because the defence, in its letter of 29 August 2013, opposed the filing of a public redacted version of the pre-trial brief. The prosecution is ready to file a publicly redacted version, should the Chamber so order.”