Bensouda has thus given notice to the court that she now wants to have the allegation re-inserted in the charge sheet that she filed last week.
The Trial Chamber V judges had specifically ordered her to remove the "factual underlying allegation that 6 victims were killed by gunshots” contained in the first murder count for Naivasha.
The judges said that the Pre-Trial Chamber rejected that particular allegation because of insufficient evidence that Uhuru and Muthaura supplied guns and police uniforms.
“The Chamber is thus of the view that the prosecution should not include the allegation that gunshots were the cause of some of the alleged killings in Naivasha,” the judges said.
Bensouda now says that she has obtained additional evidence to “substantiate this factual allegation” since the confirmation hearing in September 2011
“Accordingly, the Prosecution intends to apply to the Pre-Trial Chamber to include this allegation within the Murder Count 1. If the Pre-Trial Chamber confirms this, the Prosecution will seek leave of the Trial Chamber to re-insert the charge. We are alerting the Chamber of this possibility so that the Defence is properly put on notice of it,” Bensouda advised the judges yesterday.
She added that she may also seek to lead the evidence during trial because it demonstrates the intent and plan of the perpetrators.
Bensouda's predecessor Luis Moreno-Ocampo had alleged that Muthaura and Uhuru secured police uniforms and guns which they distributed to attackers in Naivasha.
However the Pre-Trial judges said that this allegation was challenged by the prosecution’s own witness.
The judges further said that that the police shot people dead in Naivasha and not Mungiki and pro-PNU youths.
Bensouda has now told the trial judges that she has 11 audio files with conversations in Kikuyu whose translation and transcription are in progress and will be disclosed when complete.
She says that the prosecution has provided a brief explanation of their content to the defence who she says have agreed to accommodate this request.
The prosecutor also asked the Trial Chamber to reject an application by Eldoret North MP William Ruto and Joshua Sang to appeal against the court decision that to allow the prosecution to meet its witnesses up to 24 hours before trial.
Bensouda told the judges yesterday that the issues do not qualify for appeal since they are "mere disagreements" and therefore should not be allowed.
"Contrary to the Defence submissions, the Defence was heard on this matter. On 4 September 2012 it provided submissions responding to the Prosecution’s request of pre-testimony witness meetings," Bensouda told the judges.
She added that Ruto and Sang are not obliged to take and disclose witness statements because they are planning to appeal.
Uhuru, Muthaura, Ruto and Sang are to face trial at the ICC from April 10 and 11 for crimes against humanity during the post-election violence. Ruto and Sang are accused of organising attacks against PNU supporters in the Rift Valley while Uhuru and Muthaura are accused of organising revenge attacks targeting ODM supporters.
- The Star
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