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Kenyatta's lawyer urges ICC to drop case

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(Globalpost/GlobalPost)

Kenya president-elect Uhuru Kenyatta's lawyers argued Monday that the International Criminal Court should dismiss crimes against humanity charges against him over post-2007 election violence.

Lawyer Steven Kay asked a three-judge bench at The Hague-based court to scrap his client's July trial date and send the case back to the pre-trial chamber, after prosecutors last week dramatically dropped all charges against Kenyatta's co-accused.

The evidence against top civil servant Francis Muthaura was critically undermined by the withdrawal of key witness testimony, and Kay said the five charges against Kenyatta, including rape and murder, should now also be reconsidered.

Should the charges against Kenyatta stand, he will become the first-ever president to have to fly off to The Hague to face a trial that could last at least two years shortly after taking office.

Kenyatta, 51, was proclaimed Kenyan president just over a week ago following the first elections after the east African country's deadly post-poll violence five years ago in which ICC prosecutors say some 1,100 people were killed.

Prosecutors suspect Kenyatta of having paid the Mungiki, a sect-like criminal gang notorious for beheading its victims, to lead reprisal attacks and defend the Kikuyu community when violence ripped through Kenya following disputed polls in late 2007.

Kenyatta has rejected the allegations.

His defence argues that a statement by a prosecution witness, known as "OTP-4" who later recanted testimony, lay at the heart of the case.

Because of the withdrawal of that witness "this matter has to go back for reconfirmation by the pre-trial chamber," Kay told the court.

"To a certain extent we have lost faith in the decision-making as we warned the pretrial chamber of the quality of the evidence and we were ignored," Kay said.

"The evidence against Mr Muthaura which called for the case to be withdrawn is exactly the same for Mr Kenyatta," Kay insisted.

Presiding judge Kuniko Ozaki repeatedly warned an increasingly frustrated Kay to stick within the time limits allocated to put forward his case.

A pre-trial judge's decision in January last year to confirm the charges against Kenyatta, son of Kenya's founding father Jomo Kenyatta, was based on the "crucial evidence" by OTP-4 who placed the top politician at meetings with Mungiki members.

But witness OTP-4 has since been discredited with ICC chief prosecutor Fatou Bensouda dropping all charges against Kenyatta's co-accused, former civil servant Muthaura on March 11 as a direct result.

It was the first time ICC prosecutors decided to drop a case since the world's first permanent independent war crimes court began operating in 2002.

Kenyatta -- one of Africa's richest and most powerful men -- and Muthaura were charged for their alleged involvement in fomenting the wave of deadly 2007-08 violence.

Kenyatta's running mate William Ruto is also facing an ICC trial related to the post-poll bloodshed on May 28.

More than 663,000 people were displaced in Kenya's Rift Valley after fights between rival supporters, prosecutors said, when politically motivated riots soon turned into ethnic killings, which in turn sparked further reprisals.

The clashes destroyed Kenya's image as a beacon of stability in the region, hurt its tourism industry and exposed long-simmering ethnic rifts among its population.

In Kenya on Monday attention however was focused on another court case, a legal challenge filed Saturday by outgoing Prime Minister Raila Odinga alleging the March 4 polls that elected Kenyatta were rigged.

There was little or no mention of the ICC case made in Kenyan newspapers, which instead focused on Kenyatta's appeal on Sunday for people to "pray and maintain peace" as he led church prayers on the Indian Ocean coast.

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http://www.globalpost.com/dispatch/news/afp/130318/kenyattas-lawyer-urges-icc-drop-case