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.