Friday, March 29, 2024

Steven Kay: Why I defended Uhuru at the ICC

Lawyer Steven Kay, QC, successfully defended President Uhuru Kenyatta at the
International Criminal Court (ICC), because he believed he was innocent.

In an interview with The Hague Trials, Kay said he recorded Kenyatta’s
movements between December 30, 2007 and the end of February 2008 and was
convinced he did not incite violence but was instead calling for peace after
the disputed presidential election of 2007.

“I tracked his movements every day, and I looked at what he said and did.
Anyone investigating a case should do that. And if you do that with Uhuru
Kenyatta, you would have seen a very positive case about a man who tried to
stop the violence. I discovered that in my first month with my team of looking
at the evidence. So it seemed to me that the allegations being made didn’t fit
the evidence that I could see from those sources.”

At the beginning of the case, Kay said he was certain that the prosecution
lacked basis of subjecting President Kenyatta to the ICC process.

According to him, the prosecution’s evidence lacked credibility and the
allegations were false.

“The strength of this case was built on sand. And it was sand without any
cement, bricks, anything to hold it up. This was a case built on rumour and
hearsay that was open to individuals coming forward to claim they were
eyewitnesses to events involving Uhuru Kenyatta that the prosecution never went
to check.”

Kay’s inspiration to defend Kenya’s current President also stemmed from his
admiration for his late father Mzee Jomo Kenyatta who was detained by the
British but was later released over false evidence.

“I was an admirer of his father, Jomo Kenyatta, despite the conflict with the
British. The witness who gave evidence against him retracted his evidence later
but in very suspicious circumstances. The first President of Kenya, his father,
was tried by the British, and he was also defended by a British barrister named
Dennis Pritt,” Kay recalled.

“I was asked to represent him (Uhuru), and at that stage, he wasn’t President
of Kenya then. But he came from a very distinguished Kenyan family,” he added.

Kenyatta was at the time deputy Prime Minister in Mwai Kibaki’s government when
he was named among six Kenyans suspected to bear the highest responsibility
during the 2008 Post Election Violence in Kenya.

Kay, whose strong admiration for Kenya has blossomed over the years through
frequent visits with his parents as a young boy and in later years, said he
also developed a liking for Kenyans which attracted him in defending President
Kenyatta.

Born in Jordan, Kay who also represented Slobodan Milosevic (who later
committed suicide) said defending President Kenyatta at the ICC was the effort
of a team.

As the lead defence counsel in Kenya Case Two, Kay guided the team made up of
Kenyan and international lawyers and investigators to carry out their own
investigations and gather evidence to establish the innocence of President
Kenyatta.

“We put together people from the office where I work, and we also used lawyers
in Kenya. That team shared the work with me and did a very good job. They’re
very professional. We also had an investigation counsel called Gary Summers
who’s in our chambers, and he supervised the investigations for us on the
ground,” Kay explained.

The British based international lawyer recalled hard times in dealing with the
prosecution which he claims conducted itself unprofessionally and fell below
his expectations of how an international criminal justice system should operate.

“Once we got into the procedures and workings of the court, I was very
disappointed. I was disappointed by the conduct of the prosecution. I was
disappointed by the outcome of the confirmation of charges hearing, and I was
disappointed in the procedures that thereafter followed because there were many
warnings from the defence that this case was built upon false and fabricated
evidence,” he lamented.

“No one seemed to want to listen to us. They were all in a hurry to get this
case of a high profile African leader up in court and in a trial. No one seemed
to be looking at the warning signs that if you were a doctor looking at a
patient you would be taken as being terminal signs of illness,” Kay added.

In recognition that the ICC process in Kenya was a highly politicised issue,
Kay said he played it safe by ensuring the defence team stuck and focused only
on its role of defending the president.

He also avoided media interviews which, according to him, would have dragged
his team to the politics surrounding the process. The lawyer also appreciated
the president’s non-interference in their work which he said helped them to
concentrate.

“The legal team was entirely separate from the political team. I’m not someone
who wants to put a case into a political context. I’m just a lawyer dealing
with a legal trial and a criminal justice system. The whole point to me was
that the politics of his country and those around him would have entirely
different interests, entirely different motivations with the legal team. And
the legal team has to keep its eye on the legal issues. That way you get to the
truth of a case,” he explained.

Kay who said he was surprised that ICC Prosecutor Fatou Bensouda had not
apologised publicly or admitted that her office had failed urged the
prosecution to pursue lying witnesses especially witness P004.

He believed that the outcome against President Kenyatta was final after the ICC
judges made their decision and it will be impossible for the prosecution to
bring any further allegations in future.

“I can tell you Bensouda is talking total rubbish. There isn’t another case.
There will never be another case, as there wasn’t a case in the first place.
This is again an example of the OTP trying to protect its public image and send
a message that is misleading,” he responded to the prosecution’s pronouncement
that it could revive the allegations in future.

According to him on realisation that the prosecution was failing, its hope was
that President Kenyatta would ignore the summons to be present in court during
the last status conference.

He said he advised him not to skip the session as it ‘was a staged hearing by
the prosecution and the court to see whether he would turn up. If he didn’t
turn up, a warrant could be issued, and he’d look like a bad guy.’

Though the case against his client was dismissed, Kay’s work has not ended as
he has to discuss with the ICC Registrar on protection of defence witnesses.

He explained of a looming disagreement as the registrar of the court says some
defence witnesses will not continue receiving protection of the court.

“The registrar is going through a process of deciding whether they should
remain protected or not. We have a conflict with him over that. He’s saying
some of our witnesses should not remain protected, and we say they should be,
in the same way the prosecution witnesses are protected,” he said.

Judges of the ICC last Friday dropped the case against President Kenyatta
following the prosecution’s application admitting that it did not have evidence
to sustain its allegations.

SourceCapitalfm

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