The International Criminal Court ( ICC) will hold a hearing on Monday to discuss President-elect Uhuru Kenyattaâ€™s application to reconsider the decision to confirm charges against him.
Trial Chamber V Judges have convened the status conference to also discuss consequences of the withdrawal of the charges against former Head of Civil Service Francis Muthaura on the case against Uhuru.
On February 5, Uhuru petitioned the Trial judges to refer the charges against him to the Pre-Trial Chamber 11 for reconsideration â€œto avoid a serious miscarriage of justice in the present case.â€
The President-electâ€™s lawyers argue the decision to confirm charges is substantially different to the case disclosed and relied upon by the prosecution in the Pre-Trial Brief and related materials.
The defence argues confirmation of charges was based on false testimony of witness number four who claimed to have witnessed alleged criminal meetings.
The prosecution has since dropped the evidence of witness number four, saying it was no longer credible.
Uhuruâ€™s defence also argued the prosecution misled the Pre-Trial Chamber by failing to draw crucial evidence, undermining its case to its attention.
â€œThe main purpose of the status conference is to discuss the Article 64(4) application, filed by the defence for Uhuru on February 5, and the consequences of the withdrawal of the charges against Amb Muthaura for the case against Uhuru,â€ the judges said in a document released by the ICC last evening.
The withdrawal of charges against Muthaura is likely to be the new battlefront between the two parties since Uhuru has insisted his case cannot stand without that of the former Head of Civil Service boss.
Uhuruâ€™s defence team insisted the two cases are intertwined since the prosecution consistently framed its case as a common plan involving the two.
â€œAny decision regarding liability of Muthaura would necessarily, on the prosecutionâ€™s own analysis, impact upon any determination of Uhuruâ€™s liability. In short, the mode of liability as confirmed cannot be maintained against Uhuru without Muthaura,â€ his defence lawyers Steven Kay and Gillian Higgins argued.
But in a detailed eight-paged application, Bensouda refuted claims that Uhuruâ€™s case cannot stand without that of Muthaura.
She maintained according to the Rome Statute the legal status of one alleged indirect co-perpetrator has no bearing on the guilt or innocence of another alleged co-perpetrator.
â€œArticle 25(3) itself demonstrates that the legal status of one alleged indirect co-perpetrator has no bearing on the guilt or innocence of another alleged co-perpetrator,â€ she said.
The prosecutor also said while Muthaura and Uhuru were allegedly linked together as members of a common plan, they played different roles.