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.