Recent Court Documents in the 2 ICC Kenya Cases 21 November 2013

The Prosecutor in the Ruto/Sang case made a second request for in-court protective measures for 4 witnesses. This request was largely due to the fact that she had made changes to the order of witnesses.

The Prosecutor got permission from the Ruto/Sang trial chamber to add 104 documents to her evidence list.

Subsequently, the Prosecutor in the Ruto/Sang case added items to her list of evidence.

The Ruto and Sang defence teams asked permission to appeal a Trial Chamber decision that denied them access to information about the relocation, maintenance and support of Witness 268 by the Victims and Witnesses Unit. The defence feels that this information will help them challenge the credibility of the witness during cross-examination.


Debacle at the Security Council

In a recent interview with a Kenyan TV station, Kenya’s Permanent Representative to the UN suggested that the Permanent Members of the Security Council did not need to use their veto power with respect to the draft resolution to defer Kenyatta and Ruto’s trials. According to him, this was not a matter that should trigger the ‘nuclear option’ of the veto power. It seems that 3 of the 5 permanent members took his advice… and abstained instead of voting ‘no’ (which automatically vetoes a resolution). They were supported by an additional 4 abstentions from non-permanent members. Only 7 members voted for the resolution- 9 affirmative votes were needed for it to pass- so one can’t even say it was a close call.


I call it a diplomatic debacle because the Kenyan/AU strategy employed was so shambolic and confrontational that it was one of those rare occasions in recent times that a Council resolution failed to pass despite the absence of a veto from a Permanent Member.


The result is that the Jubilee Coalition has taken to calling the 8 Security Council abstainees ‘cowards‘ and even slapping away a hand offered in compromise. If ever there was a showcase of the chaos caused by putting a nation’s foreign policy at the service of two ICC indictees, this is it.


This article aptly dissects the way in which the Jubilee government has got itself into a tangle over these cases; with the nation finding itself with strange bedfellows such as Azerbaijan’s ruling mafia (according to wikileaked cables).



Recent Court Documents in the 2 ICC Kenya Cases 20 November 2013

The Prosecutor in the Ruto/Sang case asked to appeal the decision allowing the disclosure of Prosecution Intermediaries to the Defence. The Trial Chamber rejected her request for leave.

The same Trial Chamber permitted the Government of Kenya to file observations on the effect of the Parliamentary resolutions seeking Kenya’s withdrawal from the ICC Treaty.

The Kenyatta defence asked the Trial Chamber for a stay of proceedings prior to trial due to what they allege has been abuse of process by the Prosecutor. They also wanted a evidential hearing to discuss these alleged abuses. Kenyatta’s lawyers claimed that, among other things, OTP-11 and OTP-12 conspired to tamper with evidence collection and interfere with potential defence witnesses.

The Prosecutor in the Kenyatta case asked the Trial Chamber for protective measures for its first ten witnesses, including witnesses 2, 11, 217, 232, 429, 430, 493, and 505. These measures would include voice and face distortion; pseudonyms and some in camera sessions (where sessions are closed from the public). Some of the protective measures will safeguard the witnesses who have been relocated, others are to protect persons who are not before the court. In addition witnesses 11, 217, 429, 430, 493 and 505 would, according to the OTP, need protection because the nature of their evidence may be self-incriminatory.

The Kenyatta Trial Chamber decided to excuse Kenyatta from being continuously present throughout his trial, except during:

i.                     the entirety of the opening statements of all parties and participants;

ii.                   the entirety of the closing statements of all parties and participants;

iii.                  when victims present their views and concerns in person;

iv.                 the entirety of the delivery of judgement in the case;

v.                   the entirety of the sentencing hearings (if applicable);

vi.                 the entirety of the sentencing (if applicable);

vii.                the entirety of the victim impact hearings (if applicable);

viii.              the entirety of the reparation hearings (if applicable); and

ix.                 any other attendance directed by the Chamber.

Kenyatta promptly filed a waiver of his right to be present at his trial.

Judge Ozaki dissented from the main judgement which largely mirrored and elaborated on the Ruto Absence decision. She, however, felt that there was no discretion granted to the court to waive the presence of the accused except in truly exceptional and limited circumstances such as a personal tragedy- such as in the trial of Jean-Pierre Bemba Gombo- or a national tragedy such as the Westgate Attack. Furthermore, granting a waiver to Kenyatta would violate the obligation to treat all the accused equally.

Judge Eboe-Osuji also attached a separate opinion to the decision. In it, he clearly shows the influence that the protests from the African Union and the member states have had on the question of how to treat Kenyatta and Ruto (always, Sang sits forgotten). Judge Eboe-Osuji not only felt it was worth mentioning the complaints extensively, but also argued that it might be wrong as a matter of law to ignore the views of the state parties on this particular issue of the permission granted to Ruto and Kenyatta to be absent from much of their trials.

To some extent I have sympathy with Judge Eboe-Osuji’s views: as I mentioned previously, the ICC was arguably too defensive in its initial appraisal of the complaints by African states: this may have given the impression that the court was not listening to criticism. In addition, I sympathise with Judges of the two Kenya Trial Chambers who must somehow drag these trials to conclusion in the face of two accused- William Ruto and Uhuru Kenyatta- who clearly regard the ICC as a pointless foreign annoyance now that the long-coveted offices of President and Deputy President have been attained.

The Judges see the danger that Ruto and Kenyatta present: that faced with a situation where they cannot perform both their duties to the court and to Kenyans, the two of them will not do the honourable thing and resign from office. More likely, they will resign from being ICC accused, abscond and hunker down to take the consequences.

But I think the trial chambers over-reached in their reading of the statute in order to allow prolonged absence for the two on the basis that the  ‘extraordinary functions’ of their state offices created exceptional circumstances that warranted such prolonged absence. Furthermore, the functions of Deputy President (DP), as defined in our Constitution (Chapter 9 Part 2), are arguably not as ‘extraordinary’ as the Judges in the Ruto Decision were led to believe when excusing Ruto from continuous presence at his trial. The constitution makes quite clear that Kenyatta has a deputised assistant and not a co-president, irrespective of internal power-sharing arrangements within the ruling coalition.

Yet ultimately, though not thrilled about the prospect of defendants absconding and the even less thrilled by the prospect of yet more ICC arrest warrants that might be ignored- the last thing we need is a UHURUTO-WATCH website- I think that the two Trial Chambers must simply take up the hard task of crafting another way to ensure the accused who hold office comply with their national and international duties. Success is not guaranteed, but the same could be said about any endeavour to bring justice for victims of international crimes.

George Thuo Dead

George Thuo, a former Member of Parliament for Juja constituency, died suddenly on Sunday while drinking with friends.  As well as being a prominent businessman, Thuo was a Chief Whip in the previous Parliament.


During the ICC Confirmation proceedings, George Thuo gave a statement to the Defence in the case concerning Uhuru Kenyatta, Francis Muthaura and Hussein Ali (see paragraph 219 of the Confirmation Decision).

Recent Court Documents in the 2 ICC Kenya Cases 19 November 2013

The Trial Chamber in the Ruto/Sang case granted protective measures that the Prosecutor requested for her witnesses. These include voice distortion, pseudonyms and face distortion. These measures are to be put in place directly the witnesses arrive at The Hague.

The Prosecutor in the Ruto/Sang case asked the Appeals Chamber for permission to ‘clarify’ her appeal against the decision of the pre-trial chamber denying her permission to change the temporal scope of the charges. The Ruto and Sang defence teams asked the court to reject the request.

The Ruto and Sang defence teams had confidentially filed a request to have information on Prosecution intermediaries disclosed to William Ruto. Intermediaries are the people who facilitated the initial and subsequent contact between the OTP and potential ICC witnesses. Some are compensated for the expenses they run up while working for the ICC; others are granted protective measures. The Ruto defence said that it wanted information on the intermediaries in order to effectively challenge the credibility of Prosecution witnesses and prepare for cross-examination

The issue of intermediaries nearly derailed the Lubanga trial- the first successful ICC trial- when the Prosecutor declined to provide full information about intermediaries to the defence. The Lubanga defence had alleged that some OTP intermediaries coached young former child soldiers to give false testimony incriminating the accused. The Lubanga Trial Chamber felt that the Prosecutor had violated the integrity of proceedings and issued stays of proceedings. Although the trial subsequently proceeded, the bickering over intermediaries and disclosure brought relations between the Judges and the Prosecutor to a nadir (see this helpful summary of the Lubanga case).

The Ruto/Sang Trial Chamber has now ruled on the issue of intermediaries. It ordered the Prosecutor to disclose to the defence teams a list of intermediaries who contacted Prosecution witnesses. The full identities of the intermediaries will not immediately be released; they will be referred to by pseudonyms. This, in addition to the high level of protection already given to OTP witnesses again highlights the concerns in this case for the security of those involved.

Recent Court Documents in the 2 ICC Kenya Cases 18 November 2013

The Appeals Chamber asked the parties for their views on the CLR’s application. The Prosecutor said she had no objection to the CLR’s participation.

In the same matter, the Ruto and Sang defence teams filed written submissions asking the Appeals Chamber to deny the Prosecutor’s appeal to change the temporal scope of the charges.

The CLR in the Kenyatta case asked the court to deny Kenyatta’s request to be excused from continuous presence at his trial.

The Government of Kenya asked to make amicus curiae submissions on Parliament’s resolution to withdraw Kenya from the Rome Statute.

Changes to the Prosecutor’s Approach to Investigations

According to the website PhD studies in human rights, Prosecutor Fatou Bensouda is responding to the criticisms made against her predecessor Luis Moreno Ocampo and changing the way her office investigates international crimes under the ICC statute.


A fuller description of the new approach will probably appear soon on the ICC website, but some of the changes mentioned include:

  1. Ensuring cases are trial-ready earlier in the process rather than expecting, for example, that further evidence can be collected after confirmation of charges.
  2. Building from the bottom up i.e. starting by prosecuting lower level perpetrators and gradually building up to charging the persons bearing greatest responsibility.
  3. Less reliance on eye-witness testimony
  4. Consideration of alternative charges at an early stage of proceedings rather than focussing on one or two specific offences from the very beginning.


The new approach is welcome, if it improves the capacity of her office to sustain a case to a safe conviction. At the same time, one hopes that there will also be a thorough review of how the Prosecutor’s office works with local intermediaries- this is another issue that has dogged the Prosecutor’s office (most recently with the Kenya cases and allegations of witness coaching). The system needs greater transparency as the office will probably continue to use local organisations at some point in the course of its investigations

Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law


Advancing the rule and role of law in Africa