The court ordered a status conference in this case to be held on the afternoon of 14th February 2013. It asked participants for their observations on what should be covered during the conference.
The Sang defence replied indicating its concern about cuts to the legal aid budget (from which Sang’s legal expenses have been paid), payments for his travel and stay in the Netherlands and asking that he not be restricted to the Hague during his stay in the Netherlands (his VISA conditions previously required this). The defence team further worried about the removal of certain prosecution witnesses from the final list of witnesses as well as the calling of at least 14 witnesses as to Sang’s conduct during the 2005 referendum- which they feel unduly extends the scope of the case. Apart from other organisational matters, the defence also wanted the Trial Chamber to explain how it will alternate between hearings of the Kenya 1 and Kenya 2 cases.
The Ruto Defence had fewer issues to raise in the run-up to the status conference, only asking for a similar extension of the Visa restrictions and noting its concern as to the late disclosure of evidence by the Prosecutor.
The Prosecutor reiterated her concern about attempts to contact and influence her witnesses. She also asked the court to get a public declaration from Ruto and Sang that they will appear when called for trial.
The Registrar made her observations, noting a number of logistical matters but focusing on the question of whether the Kenya 1 and Kenya 2 trials will be held simultaneously or consecutively. She estimates the length of the trials to be 18-36 depending on the mode of hearings. The Registrar notes that the simultaneous hearings model, from previous experience required extra costs, extra judicial resources (in terms of time). She recommended having 1-3 more judges for the 2 cases.
The Chamber, after receiving these observations, issued an agenda for the status conference on the following terms:
- Practical modalities for accused’s attendance at trial
- Delayed prosecution disclosure and its impact on the trial
- Scheduling of the two Kenya cases.
During the actual status conference the Chamber raised the question of 3 witnesses for whom full disclosure has been delayed by the Prosecutor. The Prosecutor explained that they were awaiting news from the VPRS on protective measures before disclosure can be fulfilled. The defence complained that there would not be enough time to investigate and prepare simply on the basis of the redacted summaries that the Prosecutor has so far provided. The specific matter of redactions concerned defence as they felt that this protective censorship shielded parts of the Prosecutor’s case from them such that they could not prepare adequately.
The defence also wanted screening notes from earlier meetings between the OTP investigators and some of the witnesses. Finally, the defence complained that the scope of the Prosecution case (the number of meetings by perpetrators, the number of tribes affected, number of witnesses etc.) kept changing. The OTP, however, denied any suggestion that the case had fundamentally changed and argued that the main witnesses and evidence were already known to the defence. The Trial Chamber will rule on this matter after written submissions are received.
The Defence also emphasised their preference for an Arusha-based Trial.
The court then turned to the scheduling of the two Kenya cases; like in the Kenyatta/Muthaura case, the Trial Chamber explained that it had communicated to the Presidency of the ICC suggesting that the cases by heard by separate trial chambers rather than just one. The court also indicated that resource limitations might mean that the two cases will share one courtroom; hearings for one case in the morning and the other case in the afternoon. Each hearing would last 4 hours.
The matter is in the hands of the Presidency of the ICC.
The OPCV made submissions on behalf of the Common Legal Representative of the Victims. He urged a longer period before the beginning of the trial so as not to coincide with the Kenyan elections (and presumably any run-off in the Presidential Elections).