The new argument comes as the prosecution filed a petition at the International Criminal Court to withdraw all the charges against Muthaura citing insufficient evidence.
In an application dated Friday ahead of the Status Conference yesterday, Uhuru insisted the two cases are intertwined since the prosecution has consistently framed its case as a common plan involving the two of them.
Illogical argument
“Any decision regarding the liability of Muthaura would necessarily, on the prosecution’s own analysis, impact upon any determination of Uhuru’s liability. In short, the mode of liability as confirmed cannot be maintained against Uhuru without Muthaura,” his defence lawyers Steven Kay and Gillian Higgins argued.
They termed as illogical the prosecution’s argument that Muthaura’s case can be remitted to the pre-trial chamber for reconsideration without that of Uhuru.
They reminded the three-judge Bench that according to the prosecution, both Uhuru and Muthaura made essential contributions to a common plan, which resulted in the realisation of the crimes charged.
“According to the prosecution’s analysis, Uhuru and Muthaura colluded to exercise a level of control over the Mungiki and the police forces, such that the allegedly planned and coordinated post-electoral violence could take place,” the counsel maintained.
Alleged role
“As alleged, the two roles are interdependent, and the realisation of the alleged common plan necessarily relies upon the contributions of both accused. Therefore, the alleged role of Uhuru cannot be considered in abstraction.”
Uhuru also said in the absence of evidence that was given by ‘Witness 4’ whose testimony has since been dropped, the prosecution’s allegations in regards to the alleged State House meeting and another at Nairobi Members Club are utterly unsubstantiated.
He insisted the pre-trial chamber supported its determination in respect of two meetings almost exclusively with the evidence of ‘Witness 4’.
“Any further evidence cited by the chamber in support of these allegations was sourced from hearsay or anonymous witness summaries, which cannot, alone, confirm the specific facts and circumstances of a case,” the lawyers submitted. -Standard Digital
