Recent Court Documents in the 2 ICC Kenya Cases 10 February 2013

The Trial Chamber is preparing for a status conference in the run up to the start of the Kenyatta/Muthaura trial. It asked the participants (Defence and Prosecutor) to make submissions on matters such as the conditions of the summons to appear and any modalities for the defendants’ stay at the seat of the court. The status conference will be held on 14 February 2013 (next Thursday). The Accused, including Presidential Candidate Uhuru Kenyatta will be required there, either in person or via video-link.

The Prosecutor replied to the court, making short submissions. The main concern is that the accused may have/will violate the conditions of the Summons to Appear by interfering with prosecution witnesses. The submissions summarise previous alleged attempts to buy out witnesses or asking them to provide false testimony. The prosecutor also wants a public statement from the accused that they will attend trial. While aimed at all the accused, clearly the request for a public statement touches Kenyatta more; despite his promises to respect the court, his possible election as President offers the temptation to ‘Bashir’ the ICC.

The Kenya Human Rights Commission (KHRC) filed a request to appear as amicus curiae. In the request, they ask that witness identities not be disclosed sooner than is necessary. This is to protect witnesses from threats and intimidation. While the filing is not a model of clarity, it seems that KHRC seeks to support delayed disclosure applications made by the OTP. KHRC especially highlights witnesses who were PEV victims.

Unsurprisingly, given that the Court is already concerned about witnesses and has been permitting the OTP to delay disclosure of identities, the amicus curiae request was turned down. The Trial Chamber emphasised that it is aware of the issue of witness threats and the matter is already being handled by appropriate organs (VPRS and OTP). Therefore the KHRC proposed brief would not add anything new or helpful to the determination of the issues.


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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


Advancing the rule and role of law in Africa

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