ICC prosecution delays Kenyatta trial

The prosecution at the International Criminal Court has agreed to delay the trial of presidential candidate Uhuru Kenyatta for alleged crimes against humanity until August in a surprise turnround that could have an impact on Kenya’s tense forthcoming elections.

The prosecution has referred another related case for crimes against humanity – against Francis Muthaura, former head of Kenya’s civil service – back to a pre-trial chamber after a key witness was withdrawn in a sign that questions over the credibility of some testimony have taken their toll on the prosecution case.

The ICC case has become the most divisive issue in a tense election campaign which has stirred fears of a repeat of Kenya’s near collapse when elections were last held in 2007.

Mr Kenyatta, who is closely tied in opinion polls with rival Raila Odinga, the outgoing prime minister, was due to stand trial on April 11 for his alleged role, along with Mr Muthaura, in 2008 violence that claimed more than 1,100 lives. The trial date clashed with the provisional schedule for a second round run-off should neither candidate gain a majority in a first round on March 4.

“It was perfect for the Odinga campaign to have the trial start on the 11th [of April],” an adviser to Mr Odinga said on Tuesday. “To have your opponents out of the country completely, with the visual image of them getting on a plane at Jomo Kenyatta airport, getting off at Amsterdam Schiphol airport and then sitting in the dock – that would seriously depress your vote. Now it means Uhuru will be free to do a second-round campaign.”

A statistician on Mr Kenyatta’s team said the trial delay would benefit Mr Kenyatta in potentially decisive urban areas, where swing voters had cited the ICC case as a reason for voting against him. “The core [voters] had already decided so it will mostly affect the swing areas.”

Defence and prosecution statements trade accusations and counter accusations relating to alleged attempts to bribe and intimidate witnesses on the one hand and extort money from Mr Kenyatta on the other.

In January, Mr Kenyatta’s team requested a postponement of the trial to allow additional time to prepare his case after one key prosecution witness was withdrawn. Mr Muthaura’s case was referred back to the pre-trial court on Monday as a result of the same witness withdrawal.

Fatou Bensouda, the prosecutor at the ICC, denied additional arguments by Mr Kenyatta’s defence that she had failed to disclose relevant evidence in time but conceded to a delay on the grounds that “logistical constraints such as courtroom availability make a trial on 11 April 2013 unlikely”.

There had been an “unprecedented level of witness tampering in this case”, she said, adding that the court’s protection unit is still securing some of the 33 witnesses before their identities can safely be revealed to the defence. Attempts were made, she says, to bribe two prosecution witnesses only days after their identity was disclosed.

The defence claims the same witnesses themselves attempted via third party to extort money from Mr Kenyatta, who has portrayed the case against him as a neocolonial plot.

Should Mr Kenyatta win the elections and remain indicted or refuse to co-operate with the court, diplomats say it could greatly complicate Kenya’s international relations, impinging on everything from development aid to business.