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.

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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

AfricLaw

Advancing the rule and role of law in Africa

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