Monthly Archives: June 2013

Recent Court Documents in the 2 ICC Kenya Cases 25 June 2013

The defence for Uhuru Kenyatta applied to the Trial Chamber to compel the Prosecutor to lift redactions on the evidence that she had disclosed. This included redactions to witness transcripts, the pre-trial brief, the list of evidence and the list of witnesses. The defence also asked the court not to set a trial date until the Prosecutor complied.

The Government of Kenya weighed in further with respect to its cooperation obligations: the A-G accused the Prosecutor of ‘paranoia’ when she claimed that her staff had been obstructed in their work in Kenya. With regard to the court injunction preventing the OTP from interviewing Kenyan security officials, the A-G noted that ‘the matter had been scheduled to be heard in court on 24 May 2013 but the matter did not proceed as scheduled’. Furthermore, the A-G argued that the reason some of the evidence handed to the OTP was incomplete was due to ‘filing problems’ caused by missing files in the Judiciary. It’s tough to read some of these stated reasons with a straight face, because ‘the matter could not proceed’ and ‘the file is missing’ are outworn slogans used day in, day out in Kenyan courts to excuse paralysis. Such phrases would have been music to the ears of the Adjournment Lawyer in R K Narayan’s classic, The Man-Eater of Malgudi. This fictional attorney was sought after:

‘… for his ability to prolong a case beyond the wildest dream of a litigant.’

Let’s see what the Trial Chamber makes of these reasons.


Judges rule on Code of Conduct and Prosecutorial Ethics

The Kenyatta trial chamber ruled on several defence applications relating to Prosecution Conduct and Ethics. The Kenyatta Defence was seeking information as to the ‘good standing’ of various OTP staff in their national bar associations. It also wanted the trial chamber to institute a Code of Prosecutorial Conduct similar to the Code of Professional Conduct that binds Defence lawyers and staff.

Since Prosecution staff are not required to hold membership in national bar associations, the Trial Chamber refused to grant the first defence request seeking information on good standing.

With respect to the second request, the Trial Chamber noted that it would have preferred the Prosecutor to be bound by a detailed Code of Conduct at the same level as the Defence, but it would not institute such a Code, arguing that as a single trial chamber, it did not have the competence to bind all Prosecution staff in all cases. If created, such a Code would only apply to the Kenyatta case.

The judges emphasised that despite the absence of a code, they could use their inherent powers as a court to sanction the Prosecutor for misconduct. Furthermore, they specifically mentioned several Articles of the Code of Professional Conduct that readily applied to the Prosecutor in the Kenyatta case (Articles 6, 7, 23, 24, 25, 27, 29). These Articles mainly refer to rules of proper conduct towards the court, other parties, witnesses and evidence; as well as general ethical standards that counsel must meet.

TJRC, Mau Mau Regrets, Rhamu, Wagalla and Post-Election Violence Victims

There’s been a lot happening over the past few weeks relating to old and new atrocities in Kenya: here’s a short(ish) re-cap.

Beginning with old atrocities: just as Kenya celebrated its 50th year of independence, the Truth, Justice and Reconciliation Commission (TJRC) delivered its report– in several volumes- on human rights violations in Kenya between 1963 and 2008. There was the embarrassing spectacle of one of the persons adversely mentioned in the report (Bethwel Kiplagat, the TJRC Chairperson) ‘handing over’ that very report to another adversely mentioned person, Uhuru Kenyatta. It’s an image captured in the photograph within the following cartoon:


Copyright Standard Group Ltd.

Kiplagat was mentioned in relation to the Wagalla massacre. His fellow commissioners were less than impressed by his testimony about how much he knew about the Massacre at a time when he was a powerful figure in government circles and whether he orchestrated a diplomatic cover-up in the aftermath. Kenyatta is individually mentioned with respect to Post-Election Violence; his broader family constitute virtually the entire volume on land injustices (OK, I exaggerate, but not by much); I doubt even the bookies would take odds on the chances of implementation of the major recommendations of the Commission. In addition, several commissioners took issue with ‘editorial changes’ that they allege were made following suggestions by senior government operatives to soften criticism of Jomo Kenyatta’s land-buying and resettlement practices.

And just to throw a joker into the draw, two individuals have gone to court to block the tabling of the TJRC report in Parliament (one of the steps required prior to implementation).

While on the subject of past injustices, the TJRC was always careful in its report to highlight that rights violations with impunity was one of the lessons that the post-independence government (and Moi’s government) learnt exceedingly well from the colonial administration. Thus, although the colonial period was not really a part of the TJRC mandate, land confiscation, massacres and discrimination during the settler period are well covered in the report. So perhaps it’s appropriate that Britain is bucking the impunity trend and offering an apology- of sorts- and compensation to former Mau Mau fighters detained and tortured in the 1950s.

Maybe this is to head off further costly and embarrassing legal battles that might have offered a legal precedent for other former colonial subjects to seek redress from London. Britain has steadfastly maintained that the obligations for actions by its colonies’ governments were assumed by the post-colonial states. The post-colonial states disagree. As far as the foreign minister’s statement went, it’s not quite the ‘sympathy and regret’ that the British Queen offered the Irish people for centuries of oppression and misrule

but it’s not too shabby either. Ultimately, however, it is for the victims themselves to judge whether the regret suffices.

Now to more recent atrocities, over 90 victims are allegedly pulling out from the ICC proceedings. From the report I’ve read (and I definitely don’t vouch for its accuracy), it seems that these are victims participating in the Ruto, Sang case. They have a number of grievances, one of which is that they feel that the Prosecutor and the ICC in general no longer serve their needs. There is also a suggestion that they were less than happy with the choice of legal representative (Wilfred Nderitu was appointed to represent them), having their own candidate in mind. Glancing at the 2nd VPRS report, only 120 victims were authorised to participate in this case (as at 25 March). So if it’s true that over 90 of them have pulled out, that would be a huge setback for victim participation. However, the news report is not clear if these victims were part of 120 currently participating, or the larger group of 300+ who took part in the confirmation proceedings.

It is also important to note that victims refusing to take part does not directly impact the trial process itself.

Finally, it seems that the flames of Rhamu are once again being fanned. 2 more people are dead, after dozens were killed nearly a month ago. Before that, there were deadly clashes just before the March election between members of the Garre and Degodia clans. One hopes that the security forces take this seriously, rather than dismissing it as ‘inter-clan’ skirmishes.

Previously, the government was going to deploy troops to carry out disarmament in the Mandera County (where Rhamu is located). Not much more has been heard about this idea; Someone may have told them that pursuant to Article 241(3)(c) of the Constitution, the National Assembly must approve the use of the Kenya Defence Forces in quelling any unrest or instability within the country. The government might of course argue that the KDF would only be providing ‘logistical support’ to police without being directly involved in operations.

The issue is sensitive because fighting between Ajuran and Degodia in the 1980s led to the disarmament operation in Wajir involving the Kenya Army that culminated in the Wagalla massacre of 1984. In the course of several days, hundreds (if not thousands) were raped, tortured or killed by soldiers. The wounds and memories remain painful from that day to this. No security official was arrested or prosecuted in the aftermath.

Interestingly, Deputy President Wiliam Ruto was the one who said the government would send troops to Rhamu to stop this latest surge in violence. According to the TJRC report (Vol 2A, paragraphs 543-544), back in 2000, when Ruto was Deputy Minister for Internal Security, he delivered a ministerial statement in a stormy Parliamentary debate on the Wagalla massacre in which he denied that thousands died- the figure he gave was 53. Furthermore, while he admitted that 13 were shot by troops, he explained to Parliament that the other 40 died from ‘excessive sunshine’.

Recent Court Documents from the 2 ICC Kenya Cases 09 June 2013

The 2 Kenya cases will now be tried by two trial chambers according to a decision of the Presidency.

The Ruto, Sang case will heard by Judges Olga Herrera-Carbuccia (who is usually a Pre-Trial Judge), Robert Fremr and Chile Eboe-Osuji. It is designated Trial Chamber V(a).

The Kenyatta case will be heard by Judges Kuniko Ozaki, Robert Fremr and Chile Eboe-Osuji. It is designated Trial Chamber V(b). Judge Ozaki was also elected the presiding judge in this case

In removing her from the Ruto, Sang case, the decision states that Judge Ozaki’s workload (like that of Judge Wyngaert) had become excessive. But unlike Judge Wyngaert, the Presidency only removed Judge Ozaki from one case. Reading Judge Ozaki’s request to be excused, it’s interesting to see her cite, among other matters, ‘the unique demands’ and the ‘unprecedented filings’ by parties in the Kenya cases as part of the reason why the workload is now excessive- and the volume of filings is increasing as the trial dates draw nearer. It reminds me of what Fatou Bensouda said about the Kenya cases being the most challenging she’s had to prosecute. Maybe there’s something to be said for the claim that the ICC has not experienced a headache quite like these Kenyans!

Subsequent to the decision of the Kenyatta Trial Chamber to proceed with that trial, the Prosecutor conducted a review to check if there was anything that needed to be disclosed to the defence but was erroneously omitted from prior disclosure. The court had demanded that the Prosecutor review its evidence and its internal procedures to ensure the problems related to witness OTP-4’s affidavit were not repeated. The Prosecutor has identified several items of evidence as a result of this review and has stated that she will disclose these to the defence.

Why The Court Held that Kenyatta’s Case Must Continue

The Trial Chamber came to a decision on the Kenyatta Defence’s Article 64 application.

The Kenyatta defence had filed this application seeking to have the case either terminated, ‘permanently stayed’ or referred back to the pre-trial chamber. This came on the back of disclosure to the defence of OTP-4’s controversial affidavit and the decision of the Prosecutor not to proceed with the charges against Muthaura.

The Court’s Analysis

The court determined that failure to disclose OTP-4’s affidavit showed deficiencies in the Prosecutor’s evidence-handling practices, but did not warrant the extreme solution of a stay nor did it require asking the PTC to re-open the confirmation decision as the Trial Court was competent to resolve the matter. The court also was not convinced that delayed disclosure made a fair trial impossible.

The Court also pointed out that although OTP-4’s affidavit should have been disclosed in good time, the defence argument that the entire confirmation was flawed and should be re-opened represented an attempt to make the Trial Chamber an appeal chamber against the PTC’s judgement. The judges were not prepared accept such an unprecedented role. They also felt that the defence had not shown how the affidavit impacted the confirmation proceedings, rather, the defence simply used the affidavit to criticised the PTC’s methods and analysis. Finally, the defence seemed to ‘overstate’ the impact of OTP’s affidavit (and OTP-11’s screening notes that were also disclosed after confirmation): they could not show that a reasonable PTC could have come to a different conclusion bearing in mind the other evidence before it.

The same went for the defence argument that the new material and witnesses disclosed after confirmation proceedings materially altered the Prosecution case such that it would not be possible to proceed to trial. The Judges felt that despite the new material, the Prosecutor had stayed within the ‘facts and circumstances’ stated in the Document Containing Charges (DCC); even if there were changes made to the Pre-Trial Brief, it was the DCC that formed the borderlines of the Prosecutor’s case. In addition, the new material could not justify sending the case back to the PTC as the new material arose when the matter was within the rightful jurisdiction of the Trial Chamber, therefore it was the body responsible for handling the issue.

The court, however, criticised the volume of new material that the Prosecution brought after confirmation, noting that the burden was on the Prosecutor to show that such witnesses and material could not reasonably have been procured before confirmation. In this case, however, the court was satisfied that the ‘challenges’ with regard to investigating in Kenya sufficiently explained the late disclosure of large amounts new evidence.

In relation to Prosecutorial ethics, the Court criticised the Prosecutor’s failure to disclose the affidavit to the defence, but did not find anything to show fraud or intentional non-disclosure as the Defence had argued. The court also felt that to issue a stay on the basis of Prosecutorial misconduct would be excessive; the judges restricted themselves to issuing a reprimand.

Flowing from it’s reasoning, the court decided that the appropriate remedies were to reprimand the Prosecution for its conduct and give the defence more time to prepare their case (the Defence subsequently asked for trial to begin in January 2014).

Judge Wyngaert, in her brief separate opinion, was caustic about  Prosecutorial behaviour. She felt that the prosecution made only generic explanations for its difficulties in investigations and did not show how the situation (particularly for witnesses) had changed post-confirmation- if indeed the situation had changed. Several times the judge described the Prosecutor’s office as ‘negligent’ and she was clear that the negligence violated defence rights to a fair trial. But crucially, she accepted the mitigating factors for the Prosecutor who was operating under ‘difficult circumstances’.

Judge Eboe-Osuji aligned himself with the rest of the court on the main issues but had a lot more to say on the issues of fraud, OTP-4, the PTC’s analysis of evidence and of Post-Confirmation investigations. He categorically refuted the defence allegation of bad faith and fraud on the part of the Prosecutor. This is arguably correct: not only is ‘fraud’ an allegation of criminality that carries a high level of proof, but the actions of the Prosecutor in remedying the disclosure failings of her office contradict such a finding. Indeed, though the defence did not see OTP-4’s affidavit till late, it had been disclosed in full to Judge Trendafilova during confirmation proceedings; the Prosecutor admits however that she should have drawn the judge’s attention to the contradiction between the affidavit and OTP-4’s previous statements on the 3 January 2008 meeting. Judge Eboe-Osuji also felt that public policy was against sending the case back to the PTC; this would cause further delay in proceedings and judicial inefficiency. The Judge also cautioned the defence against drawing too much from the PTC’s assessment of OTP-4’s credibility. He pointed out that the PTC has a very limited role in assessing the credibility of witnesses compared with the Trial Chamber. Therefore a court should be reluctant to ask the PTC to reopen confirmation proceedings on the basis of additional evidence casting doubt on the credibility of confirmation witnesses.

Where Judge Eboe-Osuji parted ways with the main decision was on the question of post-confirmation investigations. The judge felt that the reasoning of the majority would unreasonably restrict Prosecutors in future cases from pursuing such investigations, even when they would be in the interests of justice.

Judge Ozaki also agreed with the main decision, but felt that the test for issuing a stay and the test for remitting a matter to the PTC should be applied separately. To her, it seemed that the main decision had decided both issues together without fully analysing each. She further felt that there should never be a reason why a Trial Chamber would refer back to the Pre-Trial Chamber an issue about framing of the charges- an issue that she felt was solely within the competence of the Prosecutor. In other words, the Trial Chamber could not refer back something over which it had no power to begin with. Instead, she felt that in the event there is a problem with the charges, the Prosecutor should be invited to amend them and, failing this, the Trial Chamber could discontinue the trial on the basis that a violation of the right to fair trial had occurred.

Way forward

Does this judgement feed the anti-ICC position? I think not, but it won’t stop Kenyan politicians and the Executive from making hay from this. For example, the A-G has been vocal recently about the cooperation that Kenya has given the court. So the fact that the judges partly accepted the Prosecutor’s argument that investigating in Kenya has been a challenge suggests that the A-G’s cooperation argument may not be as strong as he portrays it. The court was also clear in separating criticisms of the choice of cases by the Prosecutor from criticism of her conduct of those cases. As Judge Eboe-Osuji explained, allegations of bad faith or egregious conduct by the Prosecutor should not cause the Trial Chamber to lose sight of the important role it is playing in bringing accountability for Post-Election Violence. The same advice should go to the opponents of the ICC.

Sadly, the AU has joined the bandwagon of criticising the ICC wholecloth without differentiating between poor Prosecutorial practice and the fitness of the ICC for its purpose of breaking down walls of impunity. Of course the conclusion that the Prosecutor may have been negligent in handling the Kenya cases won’t help matters- even if she reforms the internal functioning and evidence review in her office what guarantees are there that it had not happened in the past and will not happen again?

But what the court did not say was the very thing that Uhuruto’s political and diplomatic defenders have been arguing- that the Kenyatta case was too weak to ever go to trial. It is this telling omission that is probably motivating the accused and their associates to rejuvenate exhausted shuttle diplomacy for another lap around the globe.

To use a sailing metaphor: the fact that her sails had big holes in them does not mean that the Prosecutor’s ship was sailing in the wrong direction- only that the Prosecutor should probably have prepared better before leaving port. Only a full trial can determine whether her destination (conviction of the accused) is within reach according the evidence.

Defence Responses to the Government Submissions on Cooperation

The Ruto Defence supported the Government position in arguing that Kenya has in fact been fulfilling its Rome Statute obligations. They argue that the Prosecutor simply failed to investigate adequately and was ‘duped’ by key witnesses. The Ruto Defence also took issue with the Prosecutor for claiming that the Kenya cases were the ‘most’ difficult she had prosecuted- they point to the Darfur cases under the Sudan situation as being more difficult, especially since cooperation with the ICC is an offence under Sudanese law.

The Defence also accuses the Prosecutor of using slander and insinuation about witness intimidation and interference without presenting evidence to back her accusations.

The Sang defence also support the GoK submissions on cooperation, arguing that the Prosecutor is conducting a public relations campaign while at the same time smearing the image of the Kenyan Government through her allegations of non-cooperation.

Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

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