President Kenyattaâ€™s bid to stop his trial at The Hague suffered a blow Thursday after ICC judges rejected his request.
They also warned his defence team against making applications which risk the safety of their witnesses by bringing in the public details of those expected to give evidence when his trial starts on February 5.
ICC Trial Chamber judges Kuniko Ozaki and Robert Fremr ruled that the Mr Kenyattaâ€™s lawyers had failed to justify their application for a permanent stay of proceedings on the basis that the case against their client was so flawed for justice to prevail.
Judge Chile Eboe-Osuji penned a separate opinion, dismissing the application to avoid the trial as legal technical manoeuvres to prevent justice from taking its course.
Judges Ozaki and Fremr said allegations of massive witness interfering and inability to conduct their investigations would be best addressed during the trial proceedings, instead of putting off hearing of the case.
â€œThe fact that so many other options short of a stay of proceedings are available to respond to the Defenceâ€™s allegations, confirms that granting the relief sought in the Application would be a disproportionate remedy. For these reasons, the chamber rejects the defence request to impose a stay of proceedings,â€ they said.
They were however, in agreement that for the chamber to allow a permanent stay of proceedings when it was clear that the trial would not be fair and issues arising could not be solved during the course of the trial.
â€œThe Chamber recalls that a stay of proceedings is an appropriate remedy only when the essential conditions of a fair trial are missing and that there is no sufficient indication that this will be resolved during the trial process,â€ they explained.
Judge Eboe-Osuji was categorical that the arguments by the defence, prosecution and victimsâ€™ lawyers pointed to a trial in the case facing Mr Kenyatta and dismissed any manoeuvres to â€œabortâ€ the trial.
The three judges also turned down the optional request by lawyers Steven Kay and Gillian Higgins for the President for a hearing to test the evidence, which is expected to be presented by 10 prosecution witnesses.
â€œThe Chamber considers that the issues raised by the defence ought not be separated from the trial or adjudicated prior to it but are more properly addressed during the course of the trial. For these reasons, the defenceâ€™s request for a pre-trial evidentiary hearing to determine the issue of abuse of process is also rejected,â€ Judges Ozaki and Fremr said.
They were ruling on an application by President Kenyattaâ€™s lawyers for a permanent stay of proceedings due to abuse of the court process by prosecution witnesses and the prosecution itself. They argued that the evidence of 10 prosecution witnesses had been tainted beyond redemption and that Witness 118 and a prosecution intermediary had hatched a conspiracy to fix President Kenyatta.
Report by Nation