Monthly Archives: February 2013

Update: Instruction of Experts in the 2 Cases

The Prosecutor in the Kenyatta/Muthaura case submitted the 3rd report on expert witnesses. She noted that the two sides were unable to agree on Lars Bromley (CV here) as a joint expert on satellite imagery so he will be called as a Prosecution expert.  In addition, the Prosecutor is discussing with the defence the possibility of a joint expert- Dr. Peter Sommer- to examine email correspondence of various witnesses. The Prosecutor and Defence still need to agree on an expert to examine other electronic correspondence (such as Call Data from mobile phones and SMS messages). The Prosecutor was unable to find anyone willing to testify in this case as a Sexual and Gender-Based Violence expert.

With regard to the proposed experts in the Ruto/Sang case, the Defence is still concerned about the potential language barrier in regard to the Prosecutor’s suggested Socio-Political expert Herve Maupeu. The proposed expert wants to testify in French; the defence teams do not contain French speakers. This may undermine their ability to adequately follow the expert’s testimony (even if there is translation) as well as to effectively examine him. It may also make it difficult to investigate his background if much of his writings and prior works are also in French.

Lapsing into bad habits

After referring to his ICC case a ‘personal challenge’ during the first Presidential debate, Uhuru Kenyatta is evidently not averse to publicly referring to it in his campaigning. According to this article, he rhetorically asked a crowd in Meru that “If Muthaura’s case is collapsing, is that not an indication even mine will go nowhere?”

 

This is presumably a reference to the application by the Muthaura defence to have the case referred back to the Pre-Trial Chamber on the basis that there was a ‘fraud’ against the proceedings and the PTC was misled into confirming charges against the former ambassador. This is based around facts that led to the withdrawal of witness OTP-4 from the Prosecutor’s list of witnesses.

 

While there is a lot of speculation about the cases, it is unfortunate that, as a Presidential Candidate, Kenyatta could not restrain himself from publicly pronouncing on matters still before a court.

 

Nonetheless, perhaps he and his running mate have cause to be particularly jubilant over recent good news: the dismissal of the Integrity Case against them, OTP-4’s supposed about-turn and the fact that Kenyatta was rated a top debate performer (at least in the first round).

 

But it’s a little early to analogise from the case of his fellow accused because (a) Muthaura is a defendant until charges are dismissed and (b) simply because there may be fundamental issues in Muthaura’s case does not mean Kenyatta’s case must go the same way. More so because the Prosecutor still seems to have Kenyatta in its sights for alleged witness tampering.

Recent Court Documents in the 2 ICC Kenya Cases 27 February 2013

The Defence teams replied to the Prosecution Observations on the Conduct of it’s investigations. This matter arises from the Prosecutor’s application to amend the DCC to include the allegation that some victims of PEV were shot dead. The defence teams argue that Prosecution investigations were unnecessarily protrated and wholly insufficient. They ask the court not to allow any new evidence to support allegations excluded by the Pre-trial chamber as this may create a precedent for the Prosecutor to begin a case with inadequate evidence, hoping once the court confirms the case to continue with investigations up until trial. The result, they feel, will be a continued erosion of defendants’ rights

This, in fact is what the defence teams allege has already occurred in the Kenya cases. They claim that the Prosecutor disclosed a fraction of its evidence for confirmation purposes and brought a completely different case to the upcoming trial. A final point in the defence submissions is the argument that allowing new evidence on the factual allegations will be unjust as the defence has little time before trial to investigate the proposed witness testimony. The defence closes by asking for any decision on this amendment matter to be delayed until the hearing of its application to have the case referred back to the Pre-Trial Chamber.

In the same case, the Trial Chamber rejected the Defence application for leave to appeal the decision on witness preparation. The defence worried that the witness preparation decision was impractical and would prejudice the defence in their preparation for trial. The Trial Chamber felt that the 3 issues on which the defence sought to appeal failed to present ‘identifiable issues’ for a decision or amounted to mere disagreements with the Trial Chamber.

Kenyatta/Muthaura Status Conference

The Trial Chamber ordered a status conference in this case prior to the beginning of the trial. It was held on the morning of 14 February 2013 (Valentine’s Day is evidently not a court-sanctioned holiday). The Judges asked participants to give their observations prior to that date on what should be covered during the conference.

The Registry submitted observations in the same vein as the Ruto/Sang Conference discussed above. The Prosecutor also submitted brief observations reiterating her previous concerns about the accused potentially violating summons conditions by interfering with witnesses.

After receiving these observations, the court set out the following agenda for the conference:

  1. Practical modalities for the accused’s attendance at trial
  2. Delayed Prosecution disclosure and impact on the trial date
  3. Scheduling of the 2 Kenya trials.

On the day of the conference, the issue of delayed disclosure and its potential to hold up the trial came up. The Muthaura defence team was particularly vocal in protesting what they saw as the OTP’s tendency to dump evidence on them at ‘the last possible minute”. The word ‘fraud’ was hurled at the OTP (remember witness OTP-4?), with the Muthaura defence suggesting that the Prosecutor misled the Pre-Trial chamber. Judge Eboe-Osuji actually interposed to ‘suggest’ that the defence use a word other than ‘fraud’. All in all a fraught conference.

 

The Kenyatta defence stood up to criticise not just delayed disclosure but the process of redactions which according to them was unbearably onerous on the defence resources (as redactions are peeled away, counsel have to re-analyse each transcript and witness statement afresh). They also argued that these redactions make it difficult to assess the credibility of the sources of the evidence.

In the end both defence teams asked for a delay in the trial to investigate new evidence that the OTP is relying upon; so that the trial would not start in April. The court asked for written submissions that were filed on 20 and 25 of this month (more on them later). The judges then finished by informing the participants that they were awaiting the decision of the presidency on their request to have another chamber appointed so that each of the 2 Kenya cases is heard by a separate chamber.

Ruto/Sang Status Conference

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:

  1. Practical modalities for accused’s attendance at trial
  2. Delayed prosecution disclosure and its impact on the trial
  3. 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).

Chief Justice claims he’s facing intimidation and threats from Mungiki-styled group

Could be one of those inflammatory red herrings public figures occasionally throw out or could be something else…

Citizen TV youtube link

BBC Link

Uhuru/Ruto on the Ballot Paper by default

The High Court refused today to rule on the eligibility of the two defendants to run for the Presidency. According to news reports, the 5 judges held that this was a matter within the jurisdiction of the Supreme Court alone. I haven’t read the decision so I will refrain from comment for the moment. But the timing of the decision is sad as it leaves little time for any of the litigants to appeal or to move quickly to the Supreme Court before the election. Hence the title: the two will be on the ballot paper because there is now not time to challenge their inclusion through the courts. ICJ-Kenya, one of those involved in the lawsuit said as much in its post-ruling comments. However, another party to the proceedings, ICPC, threatened to continue the challenge at the Supreme Court, so the tussle may not be over.

Apparently there was jubilation (pun intended) in the streets of Nairobi after the ruling was made. The ruling also explains why I saw vehicles bearing the insignia of a certain coalition on the streets as late as 8pm handing out free election t-shirts.

Interestingly, even Cord lauded the ruling. This is in line with their presidential candidate’s statements during the Presidential debate a few days ago: he doesn’t want to be perceived as using the ICC to eliminate electoral rivals.

https://www.youtube.com/watch?v=oJj-MSXsMTQ

Here are further news reports on the ruling.

BBC

Daily Nation

Standard

The Star

Reuters

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