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Citizen Weekly

Tuesday, 17 March 2015


NAIROBI: President Uhuru Kenyatta's summons to appear in person at the International Criminal Court ( ICC) last year might have been the last act of desperation by the prosecution and The Hague-based court, his lawyer now claims. Queen's counsel Steve Kay said he advised President Kenyatta to attend a status conference in October to defeat an attempt by the prosecution to have a warrant for his arrest issued. In an exclusive interview, Kay claimed the summons were stage-managed to see whether Uhuru would turn up and by then the prosecution had already realised they had a weak case. "The very last status conference we had, where Uhuru Kenyatta attended court, for no apparent reason at all, was a staged hearing by the prosecution and the court to see whether he would turn up. If he didn't turn up, a warrant could be issued, and he'd look like a bad guy," said Kay. "But there was never any question of him not turning up. I was his lawyer. I advised him to attend. Well, I told him the date in a letter and that we would meet in The Hague, and there was never any question that he wasn't going to attend," he said. The interview in London was published on a website,, which covers the highlights in the Kenyan cases. Uhuru had been charged with crimes against humanity arising from the 2007-2008 post-election violence, but ICC Chief Prosecutor Fatou Bensouda has since withdrawn the charges. See also: ODM candidate Memusi floors JAP's Tutui in Kajiado by-election In the interview, Kay discussed virtually all aspects of the case, and answered questions, both personal and official, relating to how he was hired by Uhuru and asked to assemble a defence team when he (Uhuru) was still deputy prime minister and Finance minister. Kay discussed the evidence and intrigues at the pre-trial stage and how the case collapsed, but it was Uhuru's appearance at The Hague-based court that marked the highlight of the case, generating debate in Kenya and beyond. The dilemma was whether he would honour a position taken by the African Union that a sitting Head of State should never be tried at the ICC, or succumb to political pressure in Kenya to honour the summons, thereby becoming the first sitting president to appear at The Hague. Uhuru decided to hand over power to his deputy William Ruto and attend the proceedings in a private capacity. ALLEGE DIFFICULTIES In the move, laced with drama and controversy, the President signed a gazette notice giving the presidency to Ruto after addressing a sitting of Parliament where he explained his decision.
Uhuru attended the one-day status conference, but did not utter a single word to the judges, raising questions about the necessity of his presence at the Hague. His critics were, however, quick to dismiss the handing over of power pointing out that the deputy automatically took over as President in an acting capacity whenever he was out of the country. In the interview, Uhuru's lawyer said the prosecution and the court used different strategies to corner his client. "They adopted a number of strategic measures in this case, I believe, because they knew they had a bad case on their hands, alleging witness interference, alleging difficulties with the Kenyan government, all of which were trying to put the blame elsewhere," he said. Kay accused the prosecution of failing to carry out thorough investigations and relying on information from various institutions in Kenya. On the question of Uhuru's assets and financial details, the lawyer said the President had disclosed the number of cars registered in his name, and his phone and bank records. "I think the prosecutor didn't travel out to the Land Registry in Kenya because they knew they would find answers that didn't satisfy the question they had posed. They were present at the phone companies when the records were obtained. It wouldn't have taken them any difficulty at all to travel that same week down to the Land Registry and anywhere else, and go and interview the Registrar of Lands and bank managers," he said. See also: ODM candidate Memusi floors JAP's Tutui in Kajiado by-election Kay said he never doubted the story Uhuru gave him regarding the case. "The first thing I did, I put together a diary of what he said and did and where he went in the period from December the 30, 2007 to the end of February 2008. So I tracked his movements every day, and I looked at what he said and did. Anyone investigating a case should do that," said Kay. "If you did that with Uhuru Kenyatta, you would have seen a very positive case about a man who tried to stop the violence. It seemed to me that the allegations being made didn't fit the evidence that I could see from those sources," he said. Last year, the prosecution applied to have the charges against Uhuru terminated and he application was granted this week. Kay dismissed any chances of having the case revived on the same charges using new evidence. "There isn't another case. There will never be another case, as there wasn't a case in the first place. This is again an example of the prosecutor trying to protect its public image and send a message that is misleading."