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.

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One thought on “Recent Court Documents in the 2 ICC Kenya Cases 19 January 2013

  1. […] for a status conference that will be held before trial. I outlined some of these modalities in this post last […]

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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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