By Thomas Escritt
THE HAGUE (Reuters) - Lawyers for Kenya's president-elect Uhuru Kenyatta said charges of crimes against humanity against him should be withdrawn after the collapse of the case against his co-accused, but prosecutors at the International Criminal Court said they had new evidence.
Kenyatta, whose election earlier this month is being challenged by his rival, faces charges at the ICC over bloodshed in the aftermath of Kenya's 2007 election.
On Monday, his lawyers said these were clearly now based on hearsay after a key witness in a linked case against former civil servant Francis Muthaura retracted their testimony.
Kenyatta and Muthaura were among six suspects initially charged by ICC prosecutors with orchestrating violence after the 2007 election, when some 1,200 people were killed.
The two prosecutions are based on a lot of the same evidence and both men have always denied any wrongdoing.
Steven Kay, the British barrister defending Kenyatta said prosecutors should have dropped his case when they withdrew charges against Muthaura in a decision announced on Monday.
"What was withdrawn against Mr Muthaura should have been withdrawn against Mr Kenyatta," Kay, who heads Kenyatta's defense team, told a hearing at the Hague-based court.
Prosecutors responded that their case was strong enough to go to trial even without the key witness, especially if they were allowed to introduce new evidence they said they had collected since the case had first been allowed to proceed.
"If we open the door to new evidence it will quite quickly become a flood," Sam Lowery, for the prosecution, said, quoting a prosecution witness describing how he had been given money to buy guns.
"Your honors, you don't need guns for election campaigning," Lowery said.
The Kenyatta case is an important test for the ICC, which was set up more than a decade ago as the world's first permanent war crimes tribunal but has only secured one conviction.
The son of his country's founding president, Kenyatta is set to become the first head of state to be actively defending charges at the ICC, making his case one of the highest-profile it has dealt with.
His election victory has presented a dilemma to Western leaders who see Kenya as a bulwark in a regional struggle against militant Islam.
The defense said the charges against him were maintained because of his prominence.
"What we have here is a very unfair and biased decision that is keeping us in this case as a symbol," Kay said.
On March 11, ICC prosecutor Fatou Bensouda asked to drop the charges against Muthaura, which had been brought by his predecessor, after a key prosecution witness recanted.
Judges agreed to drop the charges in a decision published on Monday, but Bensouda said the decision would have no impact on Kenyatta's case.
Monday's hearing was called by the judges in The Hague to look at the consequences of the withdrawal of the charges against Muthaura for the case against Kenyatta.
Kenyatta's team said it was now clear the decision to allow the case to come to trial had been taken in error. "We have lost faith in the decision-making," Kay said. "We warned the court about the quality of the evidence."
Fergal Gaynor, representing the victims of the post-election violence, told the court Kenyatta's status meant he could easily influence the case.
"Never before has there existed such potential for an accused to use his own power, influence and wealth to affect the outcome of the case against him," he said.
Kenyatta, elected on March 4 by a slim margin, faces a big challenge in bridging Kenya's ethnic divides even without the ICC case. Defeated presidential contender Raila Odinga challenged the election result in Kenya's top court on Saturday, alleging widespread ballot rigging.
Lawyers for Kenyatta may argue the prosecution case has changed so much in the past year that the case should be moved back to the pre-trial "confirmation of charges" phase.
The prosecution would then have to show again that it has a strong enough case to go to trial.
(Additional reporting by Sara Webb; editing by Philippa Fletcher)
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