About a week ago, the Kenyatta defence team asked the Trial Chamber to refer the case back to the Pre-trial chamber that issued the confirmation decision. They claim that failure to do so will cause a significant miscarriage of justice. The application stems from the alleged revelation that a witness (OTP-4) whose statement was admitted into evidence at the confirmation stage of proceedings lied about parts of his testimony.
A separate application was filed along the same lines by the Muthaura defence team. They request that the following issues be referred to the Pre-Trial Chamber:
- alleged non-disclosure of potentially exculpatory evidence (OTP-4’s statements),
- the changes to the Prosecutor’s case post-confirmation
The defence teams go further than simply asking for re-consideration, they suggest that the Prosecutor misled the Pre-Trial Chamber as to OTP-4’s evidence and if the true scope of his evidence had been known, then the Chamber would not have confirmed the charges. They base this allegation on the fact that the relevant document(s) were in the hands of the Prosecutor nearly a year before the Confirmation Proceedings, yet were not fully disclosed to the defence until last year (after the Confirmation of Charges). This is consistent with the theme of the Defence that the OTP failed in its ethical obligations (Remember as well that the Defence asked for a list of OTP counsel who will appear at trial as well as an indication of their ‘good standing’ with national bar organisations).
Both the Kenyatta and Muthaura teams’ applications ask for the Trial Chamber to vacate the date of trial and refer the question of the entire Confirmation Decision back to the Pre-Trial chamber for reconsideration. Regardless of what decision the PTC makes, it will inevitably create more delay in a case that has now stretched (in the various stages) through 3 years.
The Muthaura application suggests a less extreme measure of striking out any new allegations that the OTP made (in removing OTP-4’s evidence) in the pre-trial brief and preventing the OTP from leading evidence on those allegations at trial.
Clearly a significant part of the defence argument rests on whether one reads the alleged contradictory/recanted/fraudulent testimony as a ‘preliminary issue’ under Article 64(4) to be re-considered by the Pre-Trial chamber, or whether it should be an issue weighed up during the evidentiary stage of the trial. Looking at past decisions by ICC judges (Lubanga Judgement and the Confirmation decision in the Kenya cases) it is clear that judges are reluctant to remove even weak evidence from their consideration, preferring instead to duly note its incredible or inconsistent nature and then weigh it up with the rest. This might be difficult for the Trial Chamber given that- according to the defence- the Prosecutor has removed this witness from her list of witnesses for trial. Since the witness is under protective measures and only in communication with the VPRS and OTP, it is unlikely (but possible) that he will ‘turn’ and testify for the defence at trial. So the Trial court may never get the chance to hear from OTP-4. The solution may be to take things back to the Pre-Trial Chamber as the defence suggests. More on this as it develops.