Prosecutors at the International Criminal Court will focus on weight of evidence to seek a post-election violence conviction against Kenyan Deputy President William Ruto, one of them said on Tuesday, after multiple witnesses withdrew their testimony.
Lawyers for Ruto and his co-accused, broadcaster Joshua arap Sang, want judges to throw out the crimes against humanity charges against the pair, saying the loss of the six witnesses' testimony has fundamentally undermined the case.
The hearing has become an important test case for the court in The Hague which, since being set up 13 years ago to end impunity for the gravest international crimes, has handed down just two convictions.
Ruto's high-powered legal team, headed by London barrister Karim Khan, scored a victory on Tuesday, persuading judges to allow evidence to be heard in public over the objections of prosecutors who worried a public airing could endanger remaining witnesses.
But prosecution lawyer Anton Steynberg told the court on Tuesday that enough evidence remained to convict Ruto and Sang, accused of stoking ethnic tensions to unleash an orgy of violence that drove their political opponents from their homes after national elections in 2007.
Asked by presiding judge Chile Eboe-Osuji if the quantity of remaining evidence was sufficient, Steynberg said it was.
"The prosecution intends to take the chamber at its word and focus not on the credibility, reliability and cogency of the evidence but rather on whether the quantum of the evidence may be enough to establish the guilt of the accused," the prosecutor said.
Steynberg cited satellite evidence showing that levels of fire outbreaks in the town of Eldoret had reached an all-time high on January 1, 2008 at the peak of the violence, in which 1,200 people were killed.
"Given the violence that was taking place at the time, it is unlikely that farmers had chosen at that moment to burn shrub," he said, adding that 506 buildings in the town had been aflame.
Ruto's legal team will seek to persuade judges later this week that there is no case to answer.
The ICC was forced to drop charges against Kenyan President Uhuru Kenyatta last year following witness withdrawals, which prosecutors they blamed on intimidation.
