Recent Updates to the 2 ICC Kenya Cases 09 July 2013

The Legal Representative for the Victims in the Kenyatta Case asked the court to ensure that he is notified of all confidential filings and that he is granted access to those that affect the ‘personal interest’ of the Victims he represents. He complained that despite him making the same request to the parties to the case, he has not been successful in getting such access or notification of confidential filings.

Both the Prosecutor and Defence have indicated that they have no problem with providing some access to the Legal Representative for the Victim- in relation to specific documents the Representative asked for.

The Trial Chamber ruled on the request by the Defence for access to OTP-4’s emails and all documents in his asylum application. The judges disagreed with the defence’s argument that OTP-4 allegations around the State House meeting were still at issue. But they still felt that because the Prosecutor was still maintaining her allegation about Defendants interfering with OTP-4 (allegations she claims come from OTP-4), the documents would still be relevant for interrogating OTP-4’s credibility. The Trial Chamber held that it was not enough for the Prosecutor to say that the information requested by the Defence was not in her possession, since she had promised jointly with the defence to do her best to investigate the situation around OTP-4 (prior to dropping him as a witness). As part of that promise, she had to use her best efforts to obtain the relevant evidence i.e. access to OTP-4’s emails and documents so that the Court can address the allegations that OTP-4 was subjected to interference by the defence.

The Trial chamber also ruled that in view of:

1) the amount of delayed Prosecution disclosure,

2) the new witnesses to be heard, the recently updated DCC,

3) additional disclosure as a result of Prosecutor’s certification submission,

4) and the transcripts that the Defence had received only recently,

the trial could not start on the prior scheduled date June 9th. The court however did not accept the defence request to postpone to January next year, holding that 12 November 2013 would give the defence adequate time to prepare. This is the second change of date for the trial’s start: the Trial Chamber had already vacated the earlier date of April 11 2013.

The Trial chamber also recommended to the Presidency holding parts of the trial in East Africa, though they suggested further consultation with Tanzania to find out if the country were ready to host the ICC. The judges felt that the commencement of trial and certain other proceedings to be decided in the course of trial should be held close to the site of the alleged offences and close enough for victims to effectively participate.

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

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

AfricLaw

Advancing the rule and role of law in Africa

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