ICC prosecutors botched probe into top Kenyans: lawyers

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Prosecutors botched their probe of Kenya's deputy prime minister and two others for their alleged role in deadly post-poll unrest, defence lawyers told the International Criminal Court Wednesday.

Speaking on the final day of a hearing, they said prosecutors had failed to properly investigate evidence they wanted to pass as fact to try and convince judges to take three top Kenyan politicians to trial.

"We say this case simply cannot go forward," said Karim Khan, the lawyer for Francis Muthaura, Kenyan President Mwai Kibaki's right-hand man, told the Hague-based court.

Muthaura, 64, Deputy Prime Minister Uhuru Kenyatta, 49, and ex-police chief Mohammed Hussein Ali, 55, all attended the hearing to determine whether they should be tried for the unrest that followed controversial 2007-08 polls.

"Any way you look at the evidence, even if you dress it up in its Sunday best, it's still in rags, in tatters," Khan told the court's judges.

Kenyatta's lawyer Steven Kay added: "Any prosecutor in any court should 'check the story'. That didn't happen here."

The prosecution had based much of its evidence on statements by witnesses motivated by greed, he argued.

"What they are saying is simply not true, by date, or by fact, or by image. It came down to money," Kay said.

During two weeks of hearings, prosecutors have alleged that Kenyatta and Muthaura planned and implemented attacks against supporters of Raila Odinga's Orange Democratic Movement (ODM).

They used Kenya's criminal organisation, the Mungiki, and ordered Ali to stop police from interfering, the prosecution argued.

Odinga, who at the time of the election was an opposition leader, is now prime minister of Kenya as part of a power-sharing agreement with his political rival President Kibaki that was brokered to end the violence.

Kenyatta is not only the son of Kenya's founding father, Jomo Kenyatta, but a potential presidential candidate for 2012.

All three supporters of Kibaki's Party of National Unity (PNU), they face five counts of crimes against humanity for "organising and directing" attacks against the ODM following the vote, which the ODM claimed was rigged.

The claim unleashed the worst unrest in the east African country's since independence in 1963.

Some 1,133 people died and more than 663,000 others were displaced after clashes between rival supporters, according to the prosecution, when politically motivated riots turned into ethnic killings, sparking further reprisals in the Rift Valley in early 2008.

The prosecution on Wednesday dismissed the defence's claims.

"It has been clearly demonstrated that there are substantial grounds to believe that the three suspects are criminally responsible for the crimes and that it should proceed to trial," prosecutor Adesola Adeboyejo said.

"We heard during the hearing that Mr Kenyatta is referred to as 'The Boss' by two senior Mungiki leaders," she said.

The Mungiki is described as a mafia-like group inspired by the Mau-Mau, who fought for Kenyan independence, combining a mystical blend of Christian doctrines with traditional African practices.

Kenyatta has denied ever belonging to the organisation.

The three are the second group of senior Kenyans to appear before the court since December 2010, when ICC prosecutor Luis Moreno-Ocampo asked judges to issue summonses against them for crimes against humanity.

Earlier this month former ministers William Ruto and Henry Kosgey, as well as radio executive Joshua arap Sang, appeared before the court in hearings to determine if they should stand trial for their alleged role in the violence.

Kenya last month lost an appeal to stop the ICC from trying the six men: the court turned down a request to have them tried in Nairobi.

Judges will now deliberate on the evidence before announcing their decision.

© 2011 AFP

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