Monthly Archives: January 2013

Uhuru Talks to Al-Jazeera

The Deputy Prime Minister, Presidential Hopeful and Hague Hopeful Defendant recently sat down with a journalist to discuss his presidential bid, his political alliance with fellow Defendant William Ruto and the international reaction to both.

 

I won’t spoil the surprise (except to ask when did the word “Right?” replaced the full-stop?). If you have 25 minutes in your life that you can spare (and won’t miss), check out the interview below.

 

http://aje.me/XvXtZU

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Witnesses Who Should Stop Digging

Came across this article in one of the Dailies. Some of those mentioned are former senior security officers implicated by the OTP in PEV. They then testified for Ruto at the confirmation hearings. Some witnesses should know that the stuff you say about the case out of court will usually displease the Trial Chamber, and may even harm the Defendant’s cause.

Samson CherambossPhoto courtesy of Kenya-today.com

Samson Cheramboss
Photo copyright: Kenya-today.com

Augustine CheruiyotPhoto copyright: The Star Newspaper

Augustine Cheruiyot
Photo copyright: The Star Newspaper

Modified Charges in the Ruto/Sang Case

The Trial Chamber released its decision on the Modified Charges Section in the DCC in the Ruto/Sang case. It is a shorter decision than the Kenyatta/Muthaura decision on the modified charges; the main issues that the Chamber dealt with were:

  1. The defence objections to the way in which Sang’s alleged liability was described in the Modified Charges
  2. The defence objections to the inclusion of an alleged attack on Kimumu.
  3. Various other objections regarding the temporal scope and wording of the Modified Charges

Generally, the Trial Chamber left the Prosecution’s version of the Modified charges untouched, barring a few changes to the language and requiring greater precision on the temporal scope of the charges.

Watching Reactions to Ngudjolo Acquittal

The blog katangatrial.org has been monitoring the effect of the acquittal by the ICC of Mathieu Ngudjolo. As I mentioned in an earlier post, this acquittal (and the Thomas Lubanga conviction) tells us a little bit about the potential reaction in the Kenya cases if one group of defendants is convicted while another is acquitted.

According to katangatrial.org the reaction varies from joy (among members of Ngudjolo’s ethnic group) to despondency and disappointment among members of the Hema community (where the victims of the crimes hail). But it seems a lot of the blame is being heaped on the Prosecution for conducting shoddy investigations in Ituri (sound familiar?). There is also the question raised by one interviewee about why the President of Congo’s alleged role in the crimes in Ituri was not investigated (again, sound familiar?).

I also think that the Office of the Prosecutor has a worrying tendency in some, though not all, cases to start well in the authorisation and confirmation stages and then lose its way in the midst of the trial. Perhaps this flows from problems at the investigatory phase; a case is rarely stronger than the facts on which it is built. It seems the judges have taken note of this tendency. Without passing judgement on the propriety of the court doing so, it appears several trial chambers have stepped in- through separating joint trials, re-characterising the offences or re-characterising the mode of liability- to stop a series of Prosecution trials from completely collapsing.

In the meantime, much like Kenya, Ituri and the Congo will have to soldier on and fight the battles of social justice: against poverty, disease, illiteracy and gender violence,

even as criminal justice proves frustrating and somewhat illusive.

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

The Prosecutor in the Kenyatta/Muthaura case has made delayed disclosure of a number of witness transcript summaries for 5 witnesses. Subsequent to this disclosure, the Prosecutor handed a further 7 summaries of witness statements to the defence. In both instances, the court had permitted the Prosecutor to delay disclosure to ensure the material was properly redacted.

Late last year, the Muthaura’s Defence made an application to move the trials away from the Hague and closer to ‘the grassroots’ as Politicians like to say. I blogged about this earlier, and as expected, the Chamber is seeking views as to the feasibility of moving the trial either to Kenya or Tanzania. The judges have asked the Prosecutor, Registry, Kenyatta Defence and Legal Representative of the Victims for their views. There may, I believe, soon also be amicus curiae applications on this issue given its importance to Defence rights, costs of the Trial and security and safety of witnesses.

The Prosecutor in the Ruto/Sang case has submitted additional material to the Trial Chamber on the matter of delayed disclosure of one of their witnesses (P-0534). The Prosecutor hopes the Trial Chamber will consider this material in deciding the application for delayed disclosure. In the same case, the Prosecutor submitted an additional 91 items of evidence to the defence. The OTP then added 494 pieces on top of the 91, and 17 more pieces of evidence shortly thereafter.

The Prosecutor in the Ruto/Sang Case has responded to the defence request for leave to appeal against the Trial Chamber’s decision on the witness protocol. The substance of the response is that the defence arguments against the Trial Chamber’s decision are either mere disagreements with the Trial Chamber’s decision (as opposed to matters affecting the fairness of proceedings), abstract arguments or misinterpretations of the Chamber’s decision.

UPDATE 22 JANUARY 2013: Some of the key matters that the Court and Participants may need to take into account in determining the suitability of shifting the venue to East Africa are:

1) Cost of accommodation, security and transport (especially if Nairobi is in the running as one of the venues!) of the Judicial, Registry, and VWU Staff.

2) Cyber-security and reliability of telecommunications (especially if re-located witnesses must testify through video-link from abroad)

3) Any additional technical and staff support and infrastructure available from the EAC, the Arusha Based ICTR or even the less-than-friendly African Union (Addis venue, anyone?)

4) The potential for the identification of and threats to witnesses, victims or their families. Whether or not a threat is credible, even a perceived threat may discourage witnesses from testifying.

5) Disruptions and delays, if the trials move to Kenya, taking into account a new and vastly expanded government will be taking over shortly before the trials start.

6) Chances of trial proceedings being disrupted by acts of violence (unruly demonstrations, counter-demonstrations, terror attacks).

7) Speed with which negotiations with willing hosts can be concluded and an Agreement executed.

8) Funding logistics (dealing with local banks; ensuring secure and speedy movement of court funds)

These are just a few of the things that may come into play as the Court and the Participants deliberate.

Recent Court Documents in the 2 ICC Kenya Cases 18 January 2012

Subsequent to the Decisions by the Trial Chamber on the Modified Charges, the Prosecutor in the Ruto/Sang case and the Kenyatta Muthaura case has amended the Documents Containing Charges to bring them in line with the court’s rulings.

On the 9 January deadline for disclosure, the Prosecutor in the same case submitted the materials that she intends to rely on to the Defence. These include a list of witnesses, a summary of the main facts that each witness will testify about, a list of the Prosecutor’s trial evidence and the Prosecution pre-trial brief. The Prosecutor estimates that she will require 826 hours of trial time (assuming at least 6 hours per court-day, that makes it about 138 trial days). Along with the submission, the Prosecution has further complained about lack of cooperation from the Kenya government in availing access to potential evidence; there also appears to be a lack of cooperation from certain media houses who have video and other audio-visual evidence in their possession but have not been willing (yet) to hand it over to the Prosecution.

The Prosecutor has made a similar final submission of materials in the Kenyatta/Muthaura case, where she estimates she will need 572 hours of trial time (about 95 trial days) to make her case. Here too, she complains of lack of access to evidence through non-cooperation. If her requests for cooperation (as well as various applications to the court seeking to enforce cooperation) are successful, it’s possible that the list of evidence in both cases will grow. The Prosecutor separately submitted potentially exculpatory evidence to the defence.

The Ruto/Sang Defence seek to appeal the Trial Chamber’s Decision on Witness Preparation. They are particularly worried that the Trial Chamber may allow contact  between the witness and the party calling the witness up to 24 hours prior to testimony. They also object to the requirement that both Prosecution and Defence must avail witness statements prior to witness preparation sessions and that witness preparation sessions should be recorded.

The Modified Charges in the Kenyatta/Muthaura Case

The Trial Chamber in Kenyatta/Muthaura case has issued a decision on the substantive content of the Modified Charges Section of the Document Containing Charges.

The court began by noting that the Confirmation decision is not the only authoritative statement of charges for the Trial. The Document Containing Charges (once harmonised with the Confirmation Decision) is sufficient.

Judge Eboe-Osuji also argued that, reading the Statute and the practice of other tribunals, there was little to suggest that the Confirmation Decision is the sole statement of charges at trial and that the DCC became irrelevant once charges were confirmed. Indeed, the judge pointed out that the very length of confirmation decisions (usually +150 pages) makes it impractical to read these documents to the defendant at the commencement of trial! The reading and explanation of charges is a procedural right of each defendant prior to their pleading guilty or not guilty. For this reason, the Judge preferred, at the trial stage, to use an accurate (and shorter!) Document Containing Charges.

Judge Wyngaert drew attention to the practice of the Prosecutor of including ‘background facts’ in the Document Containing Charges. The judge advocates a stricter approach whereby only facts directly material to the charges should appear in the DCC.

Some of the keynote changes that the Trial Chamber wants to see in the Modified Charges Section include:

  1. Allowing the Prosecutor to allege that the Defendants facilitated Mungiki meetings.
  2. Allowing the Prosecutor to refer to Muthaura’s alleged de jure authority over General Hussein Ali (the Pre-Trial chamber only made a finding as to Muthaura’s de facto authority)
  3. Allowing the Prosecutor to refer to allegations that Muthaura ordered the Police not to interfere with Mungiki activity in Nairobi.
  4. Allowing the Prosecutor to allege that mutilation to hide gunshot wounds occurred in Nakuru.
  5. Stating that the Prosecutor should refer to Kenyatta and Muthaura’s alleged links not only with Mungiki in general but Maina Njenga in particular. This includes an alleged agreement for Mungiki and  Maina Njenga to support PNU
  6. Allowing the Prosecutor to refer both to Mungiki and ‘Pro-PNU’ youth in describing some of the alleged perpetrators.
  7. Requiring the Prosecutor to remove references to six victims allegedly shot to death.

Update 17/01/2013: In regard to Judge Eboe-Osuji’s comment that the DCC tends to be shorter than Confirmation Decisions; I have to say, given that the latest DCC from the Prosecutor numbers over 50 pages, there may come a time when the DCC rivals the Confirmation Decision for length.

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

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