Monthly Archives: August 2013

Ethnic Violence in Marsabit

More Killings in Northern Kenya reported over the past week.

 

The map below- courtesy of kenya.humanitarianresponse.info– gives a snapshot of various conflicts (including inter-ethnic) that happened throughout Kenya in the period between January and June 2013.

Click here for map (pdf)

Recent Court Documents in the 2 ICC Kenya Cases 29 August 2013

On 16 July, the Prosecutor informed the court that she will not call 3 witnesses on her witness list. One of them, witness 5, was too concerned about his safety to continue cooperating with the court. He felt there was public speculation about his contribution to the case, an attempt had been made to discover his location and there was and an incident (which has been kept confidential) occurred which caused him to further fear for his safety. The Prosecutor determined that the other two were not necessary for her to prove her case.

Recent Court Documents in the 2 ICC Kenya Cases August 27 2013

Earlier this year, the Ruto defence requested the full screening notes used in interviewing Prosecution witnesses. A number of these witnesses will not be called at trial. The Prosecutor undertook to provide the notes once she had carried out a risk assessment and contacted the persons to whom the notes related. Having done this, she felt that the concerns of the witnesses about the risks they may face if their identities are disclosed were too great in view of the low probative value of the screening notes. Some of the witnesses worried that they would be classed as ‘betrayers’ of their community and they or their families may face retribution for cooperation with the court. Therefore, she sought the Court’s permission to keep the identities of the witnesses in the screening notes from the defence.

The Ruto Defence opposed this application, arguing that the Prosecutor applied the incorrect test in deciding whether to disclose witness identities. They point to alleged inaccuracies of fact and law in the Prosecution application. The Defence also complained that there are deficiencies in the OTP that are leading to a ‘haphazard’ approach to disclosure of evidence. The defence team feels that excerpts of the screening notes are insufficient; they need the full notes with the identities of the witnesses.

The Rules of Engagement for the Ruto/Sang Trial

The Trial chamber asked the parties in the Ruto/Sang case to give submissions by July 3rd on the conduct of the upcoming trial. These submissions were on:-

  1. Intention to make an opening statement and any special requirements to facilitate this.
  2. The Prosecutor’s schedule of her first 10 witnesses.
  3. Defence submissions on the time required to cross-examine.
  4. Whether the Defence or Prosecutor objects to certification before trial that the accused read and understood the DCC. These parties will also need to indicate if they object to the charges being read out to the Defendant at the beginning of the trial.
  5. Whether the court should allow a motion of ‘no case to answer’ after the prosecutor finishes presenting her case (before the Defence begins it’s own case). Such a motion would request the court to dismiss one or more counts before the Defendants begin their case.
  6. Possible self-incrimination by Prosecution witnesses. (Several witnesses are alleged to have taken part in the crimes charged).
  7. In-court protective measures for any Prosecution witnesses
  8. The timing and order in which Parties will question witnesses
  9. The procedure for questioning (advance notice of introduction of new material and objections thereto)
  10. Procedure for admission of materials (exhibits) through witnesses.
  11. Other methods of admitting materials into court record.
  12. Matters specific to the Victims representative such as the order and timing of the Common Legal Representative’s questions to witnesses, manner in which CLR will request to question a witness.

The Prosecutor replied, expressing (among many other things) that she would be happy to follow procedures laid down in previous completed trials (the Lubanga trial and the Katanga trial). She expects to make a 90 minute opening statement, and will call her first ten witnesses in the following order: P087, P0452, P0185, P0464 (EXPERT WITNESS), P0326, P0189, P0438, P0376 and P0410.

The Prosecutor also noted that some of her witnesses (P0015, P0016, P0024, P0028, P0323, P0356, P0534) might give self-incriminating evidence and thus the court will need to address this should the issue arise during testimony.

The Ruto defence replied, noting that it was too early for it to give a list of its opening witness- in a sense the defence wants to see how the final Prosecution case shapes up before deciding whether and in what order its own witnesses will appear. The Defence also wants to make submissions on the Prosecutor’s full witness list because it believes certain witnesses may have ‘concocted’ their accounts and therefore, having them appear sequentially lessens the time they may have to confer or change their accounts based on any testimony that they may hear before each takes the stand.

The Ruto Defence also wanted to be allowed to submit a ‘no case’ to answer application at the end of the Prosecutor’s case. Such applications allow a court to dismiss one or more charges before the Defence begins its case. They are usually only successful if the Prosecutor’s case is so weak that no reasonable court could convict the accused. Even if such an application is successful, it is not the same as an acquittal; the Prosecutor could in theory charge the accused at a later date under the same charges. But in practice Prosecutors usually cut their losses and focus on the remaining charges.

With regard to the order of questioning, the Ruto Defence also wanted the Prosecutor and Common Legal Representative to finish asking questions before the defence begins its cross examination.

The Defence also wanted to be able to object to admission of any item of evidence from the point of notification up to the point of admission- this leeway, they argued, is necessary because of the amount of material they’re processing and the fact that defence investigations are still ongoing.

During cross-examination, the Ruto defence wanted parties to be able to confront the witness with any document already in evidence- they also want the principle that the Defence should have the final word in questioning a witness upheld.

Other issues dealt with in the Ruto submission include procedures for introducing evidence through witnesses, transcripts of audio-visual materials, introducing non-witness related evidence through the ‘bar table’, and how the CLR should request permission to question a witness.

The Sang defence informed the court that Joshua Sang will make an unsworn statement at the beginning of his trial. The unsworn statement is a right of the defence, but because the Prosecutor cannot cross-examine Sang on his statement (and he is obviously not under oath when giving the unsworn statement), it tends to carry lower probative value than if Sang himself takes the stand as a witness under oath during the trial.

The Sang defence also wanted some indication of the order of Prosecution witnesses- such as whether they will be linked according to crime, geographical area, expert/fact witnesses. They generally expected to use the same amount of time cross-examining as the Prosecutor will use in the examination-in-chief (where the Prosecutor puts forward her witnesses and asks them questions).

The Sang defence did not object to Sang certifying prior to trial that he has read and understood the charges against him. They were also fine with the counts section of the DCC (where the specific crimes alleged- Murder, Deportation/Forcible Transfer, Persecution- are set out) being read in open court.

Sang agreed with the Ruto defence that no case to answer applications should be allowed after the Prosecutor finishes her case.

The Common Legal Representative indicated to the Chambers that he will make an opening statement at the start of the trial that will last about 4 hours; he will also use audio-visual material. The CLR may also present some evidence on behalf of victims. Furthermore, the CLR asks that prior recorded testimony not be admitted unless the witness to whom it relates is either dead, cannot be found, or cannot be brought to court without considerable expense or delay.

Recent Documents in the 2 ICC Kenya Cases 9 August 2013

The Trial Chamber decided to allow the Prosecutor further time to disclose translations of Audio-Visual material from Kalenjin to English. The Chamber noted that the OTP had a lack of qualified translators, though it felt that the Prosecutor should have anticipated this issue earlier. However, because the judges felt that there would be no prejudice to the defence, they allowed delayed disclosure, setting the final date for 16 July 2013.

Last year, the Sang defence had asked for an opportunity to give written submissions on the definition of an ‘organisational policy’ to commit an attack against a civilian population (one of the elements under Article 7 of the ICC Statute the Prosecutor must prove). The defence has now withdrawn that request– though they made it clear that they still considered the interpretation of ‘organisational policy’ to be an important matter for trial.

The Prosecutor agreed to provide the Sang defence with 5 victims’ application forms with lesser redactions. These are the forms that victims prepare in order to seek permission to participate in the ICC cases. The Sang defence requested these applications because the five victims could also be trial witnesses. The Prosecutor applied to the Trial Chamber to allow the lesser redactions, the Sang Defence supported this application, noting that the Common Legal Representative of the victims had consented to this application. The Sang defence however felt that the Prosecutor had not been diligent in her work as she only made the application several months after communication between the parties. But the Sang defence also admitted that without seeing the actual forms, it is difficult to point to any prejudice that has yet been suffered.

The Appeal Against the Decision to Allow William Ruto to be absent from Court Proceedings

The Prosecutor in the Ruto/Sang case sought to appeal the decision allowing William Ruto’s absence from parts of his trial. She applied to the Trial Chamber for leave to appeal because she felt that the Chamber made the following errors:

  1. The scope of the Defendant’s duty to be present at trial and whether a Trial Chamber has a discretion to excuse an accused from this duty to be present.
  2. By stating that the test for such an excusal was that “…In exceptional circumstances […] the
    Chamber may exercise its discretion under Article 64(6)(f) of the Statute to excuse
    an accused, on a case-by-case basis, from continuous presence at trial. […] The
    exceptional circumstances that would make such excusal reasonable would
    include situations in which an accused person has important functions of an
    extraordinary dimension to perform.”

Like the Judge Carbuccia in her dissent, the Prosecutor worried that this decision could create inequality between different accused: some (like Joshua Sang) without important functions that meet the test would always have to be present whereas the more powerful accused (like Kenyatta or Ruto) would almost always be able to negotiate their absence from court owing to the functions that they perform.

The Prosecutor felt that prompt reference of the issue to the Appeals Chamber would move the case forward expeditiously. She pointed out that a similar point must be decided by the Kenyatta Trial Chamber. She also raised the question of whether, after a lengthy trial, Ruto’s absence could be used as a grounds to appeal a possible conviction on the argument that his right and duty to be present was non-derogable and could not be waived either (i) by his choice or (ii) at the court’s discretion. Thus she wants the issue settled before trial so that time and expense are not applied to proceedings that could be nullified much later over the absence question.

The Defence replied to this application by arguing that the Prosecution’s grounds for appeal were speculative, implausible, remote and/or theoretical. The Defence felt that the Prosecutor simply disagreed with the majority decision but had failed to show any appeal-able issue. According to the Defence, the Prosecutor had not shown how deciding the appeal would assist in the expeditious and fair conduct of proceedings. Further, the Prosecutor had misunderstood the test laid out by the court for ‘exceptional circumstances’. According to the Defence, the test had little or nothing to do with the executive functions of the the accused.

The Defence argued that the issue of a possible appeal against conviction does not arise because William Ruto waived his right to appeal on an issue that turned on his voluntary absence from proceedings. Finally, the Defence suggested that the Prosecutor’s argument that this issue could affect other cases before the ICC was a policy argument that could not validly be advanced to support an appeal on an issue specific to this case.

The Majority of the Trial Chamber (Judge Eboe-Osuji dissenting) agreed with the prosecutor that there were appeal-able issues in the application. The judges also agreed that the issues would significantly affect the fair and expeditious conduct of the trial or its outcome; if Ruto were convicted and appealed, the risk existed that parts or all of the trial being nullified because of his absence at certain stages. This would lead to significant delay. Furthermore, conducting the trial with this issue hanging over it would lead to greater uncertainty if there is evidence that was heard while Ruto was absent from court. Therefore, fairness required the Appeals Chamber to review the decision now, before trial gets underway.

Judge Eboe-Osuji dissented because he did not feel the issues raised significantly affected the conduct or outcome of trial in the way the prosecutor was arguing. He appeared to agree with the Defence that the arguments put forth for leave to appeal were largely hypothetical and based on many ‘ifs’, ‘mays’, and ‘possiblys’ which required speculation about what might happen in the event Ruto got convicted. He also felt that the Prosecutor was wrong when she complained that the principle of equality before the law was violated by the test requiring the accused to show ‘exceptional circumstances’ for his absence. The judge felt that the law

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

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