Monthly Archives: December 2012

Recent Court Documents in the 2 ICC Kenya Cases 31 December 2012

The Kenyatta/Muthaura defence has presented an observation chart for the Modified Charges Section of the Document Containing Charges that the Prosecution recently submitted. The prosecution has responded to the defence filing here and here.

The Trial Chamber in the Kenyatta/Muthaura case has called an ex-parte (one side only participating) conference as requested by the defence. Actually ex-parte is a little misleading because the Victims and Witnesses unit will be participating as well.

The Prosecutor in the Kenyatta/Muthaura case has applied to have the page-limit for her Pre-trial Brief extended from 20 pages to 75 pages. The Pre-Trial brief is an explanation of the case that each side is expected by the Trial Chamber to file.

The Prosecutor in the Kenyatta/Muthaura case has submitted an additional 309 pieces of evidence to the defence.


Recent Court Documents in the 2 Kenya ICC Cases 30 December 2012

The Prosecutor has renewed her request for redactions of investigators’ names from documents to be disclosed to the defence. This follows the Trial Chamber’s dismissal of her previous request. The fact that the defence teams have been alleging (in confirmation proceedings) that ICC investigators failed to do their job properly may make the issue of identifying investigators a key struggle during the trial. No surprise then that the defence wants the names or pseudonyms of the investigators (see here and here).

The Kenyatta/Muthaura defence has asked the Trial Chamber not to allow delayed disclosure by the Prosecutory of 4 witness identities. The prosecutor wanted to disclose identities 30 days before trial (rather than on the 9 January 2013 deadline initially set by the court). The defence argues that delayed disclosure impacts their ability to assess witness credibility. The defence also argues that delayed disclosure impacts on its ability to adequately investigate the whereabouts of individuals and their movements 5 years ago (before, during and after PEV). The defence further argues against permitting the Prosecutor to disclose the identity of 1 witness after the trial begins; they argue that this is contrary to the intent of the Rome Statute and may impact the ability to effectively cross-examine the witness who has been disclosed during the trial (for example other witnesses who’ve already testified may be unavailable if recalled for re-cross-examination on the basis of the new witness’ evidence).

The Prosecutor added an additional 7 witnesses to her applications for delayed disclosure of identity. There are now a total of 12 Witnesses (out of 35 on the Prosecutor’s provisional list of witnesses) for whom the Prosecutor seeks delayed disclosure. This application for the additional 7 is due to concerns for the security of the witnesses. Furthermore, the Prosecutor identified a number of these witnesses recently and so argues that they should be given more time prior to disclosure. However, in one troubling allegation, the Prosecutor suggests that one witness (pseudonym: Witness 334) was offered money to refuse to testify for the Prosecution. Not only that, but the Prosecutor suggests that attempts are being made to identify witnesses within the ICC’s Protection Programme. Other witnesses who were allegedly offered bribes were Mungiki insiders. Finally, the Prosecutor argues that there have been leaks of confidential information to supporters of the Uhuru Kenyatta and Francis Muthaura.

Recent Court Documents in the 2 Kenya Cases 26 December 2012

The Sang/Ruto defence teams have asked the court to compel the Prosecutor to specify which witness it has recently decided not to call.

The Prosecutor in the Ruto/Sang case has submitted a modified Charges Section to its Document Containing Charges.

The Prosecutor in the Ruto/Sang case has sought to have redactions of the names of Prosecution Investigators included any future documents her office submits.

According to the Prosecutor, another 61 items of evidence have been disclosed to the Ruto/Sang Defence.

Similar to the Kenyatta/Muthaura case, the Prosecutor in the Ruto/Sang case has filed a report on joint instruction of experts. However, unlike in that case, there seems to have been no agreement with the Ruto/Sang defence as to any of the experts. The experts to be used were a satellite imagery expert, a Socio-Political background expert and a Post-Traumatic Stress Disorder expert. The prosecution indicates that it has not yet identified a suitable PTSD expert. Anyone interested in the background/qualifications of the proposed experts should read the full report here.

Recent Court Documents in the 2 ICC Kenya Cases 22 December 2012

The Prosecutor in the Kenyatta/Muthaura case submitted a modified Charges section in their Document Containing Charges (DCC). This is in response to an earlier ruling by the Trial Chamber requiring the Prosecutor to restructure and clarify the Charges section. You can read the modified charges here.

The Prosecutor, in her second report on joint instruction of experts (see this earlier blog post on the Ruto/Sang case), informs the Trial Chamber that she proposed the names of two experts for consideration by the Kenyatta/Muthaura defence teams. One is Lars Bromley, a satellite imagery expert;

the other is Herve Maupeu an expert in the Socio-Political Background (I couldn’t find a photo!).

Many might be puzzled as to what exactly constitutes a Social and Political background expert. Some clues can be gleaned from the Prosecutor’s proposed instructions: the expert is supposed to answer questions such as What was PNU at the time of the 2007 elections? or Did ODM draw support from any particular segment of the population? If so, which ones and why?Other questions delve into the history and pathology of political violence, criminal gangs and non-state militia in Kenya. In total there are 12 questions. Back to the report: the thrust of this submission is that the Prosecutor wants to proceed to instruct Mr. Maupeu as a Prosecution expert because there was a failure to agree with the defence teams on joint instruction. With regards to the other experts, discussions are still ongoing.

The Muthaura Defence team has made an application to the Presidency of the ICC (made up of the President of the Court and his two Vice-presidents) to change the venue of the trial to either Kenya or Tanzania. If they are successful, the Presidency is will then seek the views of the Trial Chamber trying the case and the relevant countries which might host the trial. For practical purposes, the other defence teams (including the Ruto/Sang) defence would have to agree. If they don’t, it’s tough to envisage Trial Chamber V sitting in both the Netherlands and contemporaneously in an East African State. Unless they split the trials, all the players would probably need to assent to a shift in the trial venue.

The Trial Chamber has dismissed the Prosecutor’s fifth application for authorisation of non-standard redactions in the Kenyatta/Muthaura case.

On 4 December 2012, The Prosecutor in the Kenyatta/Muthaura case communicated further incriminatory evidence to the Chamber and the relevant defence teams.

Recent Court Documents from the ICC Kenya Cases 20 December 2012

Kituo Cha Sheria submitted it’s Amicus Curiae observations on victims’ participation in the trial proceedings (Ruto/Sang here, Kenyatta/Muthaura here). Kituo’s observations centred on the security of the Common Legal Representative, the need for effective lines of communication between the CLR in Kenya (not sure if he’ll be based in Nairobi or not) and the OPCV at the Hague, the need for adequate, cost-effective support for the CLR, including logistics, office space and funding Victims’ travel, the need for trust and credibility between the CLR and victims, judicial supervision of the Victims Representation System and ensuring adequate information reaches the victims about the new system of representation.


The registry completed its proposals for the victims participation system (Ruto/Sang here, Kenyatta/Muthaura here). This particular document deals mostly with concerns from the OPCV as to the staff allocated by the Registrar between the two cases.


The Trial Chamber in the Ruto/Sang case extended the deadline for the disclosure of certain witness evidence to the defence at the request of the prosecution. Subsequently the prosecution notified the trial chamber that it no longer intends to rely on the said witness citing ‘witness management issues’ and the doubts about the ‘ongoing willingness’ of the witness to testify.


The Prosecutor in the Ruto/Sang case filed a response to a defence request that the Trial Chamber compel the Prosecutor to state whether she still intended to rely on a number of witnesses from the Confirmation proceedings. The Prosecutor urges the Court not to compel disclosure of the list of witnesses earlier than 9 January 2013; pointing out that the list is still provisional and that there are security issues at play.



Another milestone or millstone? The First ICC Acquittal

Today the ICC acquitted Mathieu Ngudjolo Chui. He was on trial for allegedly committing war crimes in the DRC. This acquittal is important not only as another dubious first- the summary suggests that the judges were dissatisfied with the quality of the prosecution’s witness testimony- but because of how it may guide other trial chambers in the standard of review of evidence and modes of liability.

One member of the trial court, Judge Wyngaert, was particularly troubled by the elements of indirect co-perpetration and the application of the so-called control theory imported from German Legal doctrine. Her analysis of the engineworks of international criminal law theories of liability will probably interest lawyers more than non lawyers. But these same issues of modes of liability are being challenged by at least one defence team of the Kenyan Accused. So I’ll blog more on this once I’ve looked through the various judgements (so far the main judgement is french only).

Another important lesson from the Ngudjolo acquittal is just how problematic joint trials can become. The Prosecutor originally charged Ngudjolo and Germain Katanga separately. A decision was then taken to join the two cases for trial. Shortly before Ngudjolo’s acquittal, the Judges again separated the two cases. We’ll know the reasons fully once the Katanga case ends but it is food for thought in view of the way the Kenya cases have been joined for trial.

UPDATE 22 DECEMBER 2012: Another reason why Judge Wyngaert’s Opinion is vital is that she is one of the trial judges in the Kenya cases where, among other things, Uhuru Kenyatta and Francis Muthaura are charged as indirect co-perpetrators of crimes against humanity. Will her strong views on the nature of indirect co-perpetration affect how the parties (Prosecutor and Defence teams) approach the trial?

UPDATE 23 DECEMBER 2012: Ngudjolo’s acquittal may also cause ethnic turbulence in his home province of Ituri. This is because some of the fighting in the 2002-2003 Congo conflict took the form of ethnic war between Hema and Lendu within Ituri Province. Now a Lendu leader, Ngudjolo, has been acquitted whereas Thomas Lubanga who led a largely Hema militia was convicted. How will it play in the ‘silent war’ of histories where each ethnic group writes it’s own history of the conflict casting itself as an innocent victim responding to atrocious aggression by the enemy? How will it play in terms of perceptions of the court where aggrieved Hemas may feel themselves ‘victims’ of international justice that has convicted one of their sons, while acquitting a son of the perceived Lendu enemy?

The ethnic dimension is also present in the Kenya case and remains a thorny question that must be addressed throughout and after the trials. While PEV did not degenerate into all-out war at the level of the Ituri conflict, how would an acquittal in one case be met if it is accompanied by a conviction in the other? Will it feed the sense of victimhood amongst Kalenjin, Kikuyu or Meru? Or will it show that international justice is fair-handed and each accused had an equal chance before the court?

Christmas for the displaced

Copyright Capitalfm Kenya

Copyright: Capitalfm Kenya

The rain is back. It’s falling fast and heavy, pattering down the plastic sheets, dripping down into the streets. Flowing down the cardboard roof and into the footpaths.

When the rain stops the mud and cold begin.

Politicians were here yesterday. But only for a few hours. Future County Assemblymen, Women’s Reps, Senators, Members of Parliament, even one or two future governors.They demand we register to vote: “Do the right thing”

They are flush with joy. There is jubilation that cords of friendship have been bound. They’ve left now; I’m left holding tattered cords of my rainswept life.

They registered us for relief. They registered us for compensation. A prosecutor came to see us and registered our plight and made promises. Now, They’ve asked us to register to vote. “Hurry up” they say. “Beat the deadline” they add. “Don’t wait till it’s too late” they warn.

We ask again and again for the means to renew our lives. “Be patient” they say. “It’s only been five years,” they remind us, “We’re working as fast as we can.”

We’ve been in makeshift camps, temporary camps, transit camps, resettlement camps, closed camps, ‘camp-like’ situations and no camps. We fill the streets of Eldoret, Limuru and Kericho.

Now we’ve been integrated into host communites. Integrated into the landscape. Submerged in the mud, hidden in the background. Out on the streets, stripped of the status of IDPs, we became street urchins; our kids became street kids. Their kids will be street kids’ kids. Are they still displaced or now at home in with the homeless? Can one be an IDP from birth? Does displacement begin at conception?

What remains is relief organisations playing the chord of pity. A magical chord that releases funds that feed more alphabet soup groups that tweak that chord one more time. Until old pity is deluged by a new tune of indifference

To be displaced isn’t just being in a camp. Its the street. The stranger’s house. The ancestral home as alien as Mars. It is traumatic amputation from a life. It is living with a ghost limb that itches every day in a place you can’t scratch.

Many resettled after the violence ended. So the rest of us are a lighter burden on the conscience. Buried, smothered quietly in plain sight.

Outside, the rain hasn’t stopped. It runs down the plastic sheet. Into the street. It churns the footpaths into sticky mud. I cannot pass until the rain stops. I can’t move forward and I can’t go back.

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

UK Constitutional Law Association

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