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:
- Practical modalities for the accused’s attendance at trial
- Delayed Prosecution disclosure and impact on the trial date
- 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.