The Hague - Defence lawyers for top Kenyan politician Uhuru Kenyatta have asked the International Criminal Court to drop the trial against him, saying a top prosecution witness lied.
In a document made public on Wednesday, Kenyatta's lawyer Steven Kay said a prosecution witness only named "OTP-4" had lied about being present at meetings between Kenyatta and the Mungiki, Kenya's powerful criminal underground in the run-up to the controversial presidential vote and its violent aftermath.
Judges of the Hague-based ICC last year decided to try Kenyatta and his co-accused Francis Muthaura on five counts of crimes against humanity over their role in the 2007-08 unrest that gripped the east African country, killing more than 1,100 people.
Prosecutors said Kenyatta and Muthaura used the Mungiki, described as a mafia-like group similar to a sect and inspired by Kenya's Mau-Mau fighters, to foment violence and attack opposition members during the country's deadliest unrest since independence in 1963.
In one case, the ICC's pre-trial judges - who confirmed charges against Kenyatta and Muthaura in January last year - found that the two men, together with President Mwai Kibaki met Mungiki members at Nairobi's State House in November 2007.
During the confirmation of charges hearing, prosecutors used OTP-4's eyewitness accounts of the meetings to show judges the link between Kenyatta, son of Kenya's founding father Jomo Kenyatta, and the Mungiki.
But Kay said, "After the confirmation hearing, OTP-4 resiled from his evidence and admitted he had lied and was not present at the meeting as alleged".
"OTP-4 has also admitted lying about another meeting at which he alleged he was present between Kenyatta and Mungiki personnel," Kay said.
Furthermore, OTP-4 "the only direct source" was no longer on the prosecution's witness list of an alleged meeting on 3 January 2008, where Kenyatta was supposed to have directed the Mungiki to commit the crimes for which he have been charged.
The prosecution has misled judges by using OTP-4's statements to get them to confirm the charges against his client, Kay said.
"For the reasons set out above, the Defence... requests the Chamber to refer the... issue of the validity of the confirmation decision back to the pre-Trial Chamber and vacate the day set for trial," Kay said.
Responding, chief prosecutor Fatou Bensouda's office said on Wednesday its preparations for a trial date for Kenyatta, Muthaura and the two other accused in the case, then opposition supporters William Ruto and Joshua arap Sang on April 10 and 11 were continuing.
"The channel to respond to all submissions presented to the Chamber by any party to proceedings before the court is through a filing to the judges and not through the media," Bensouda's office added.