He faulted the prosecution for dropping charges against former Head of Civil Service Francis Muthaura on basis of witness intimidation yet the court has powers to issue sanctions on those blocking progress of the cases.
“The withdrawal of the charges against Muthaura and the reasons provided by the prosecutor for that withdrawal cannot be allowed to stand as an incentive to those who would seek to undermine the work of this court through bribery, intimidation and blocking access to relevant evidence,” he said.
In his application, Gaynor argued that the Trial Chamber has no jurisdiction to determine the fairness, integrity or validity of the confirmation proceedings.
According to him, only the Appeals Chamber or the Pre-Trial Chamber can review confirmation process.
The lawyer also argued that the request by Kenyatta’s counsel is a delaying tactic and the Trial Chamber should not allow it.
“If granted, it will result in substantial delay, as it would require a fresh confirmation hearing, possibly involving the submission of much more evidence than at the original confirmation hearing, and would require the preparation of a new confirmation decision which itself will likely be subject to an application for leave to appeal. Any further delay in this case carries with it enormous risk,” he asserted.
The prosecution withdrew charges against Muthaura, Kenyatta’s co-accused, after the key witnesses retracted his evidence.
Kenyatta and Muthaura were jointly accused of implementing a common plan that led to killings in Nakuru and Naivasha during the post election violence in 2008.
Kenyatta’s lawyer Stephen Kay during last month’s status conference asked the prosecution to explain how their client carried out a ‘common plan’ on his own arguing; “a common plan to execute crime collapses once the co-perpetrator is withdrawn or shielded.”
The Trial Chamber also tasked the prosecution to explain how Kenyatta would be charged for contributing to a common plan on his own.
The judges wanted to know how Kenyatta individually constituted a common plan in the absence of co-accused after withdrawal of charges against Muthaura and former Police Commissioner Hussein Ali, who were facing similar charges.
The prosecution said it will not make any amendments even after dropping charges against Kenyatta’s co-accused.
Although the dates for the trials of Kenyatta, his deputy William Ruto and former Radio personality Joshua arap Sang have been set for July and May respectively, the Trial Chamber is yet to rule on Kenyatta’s request to have charges against him dropped or referred to the Pre-Trial Chamber.
Meanwhile, the Victims Legal Representative in the Ruto-Sang case Wilfred Nderitu who can give an opinion in Kenyatta’s case, has opposed a request by the president-elect to stand trial via video link.