The Common Legal Representative of the Victims (CLR) in the Kenyatta case asked the Trial Chamber to compel the Kenyatta defence to state whether it had supplied information to telecoms companies in Kenya that might be used to identify witnesses. This came after the revelation that the Kenyatta defence was, through a confidential application in the High Court, seeking mobile telephone data of certain individuals connected with the Kenyan cases. The CLR worries that by allegedly releasing such data, the Professional Code of Conduct and the Code of Conduct for investigators may have been breached.
The Kenyatta defence replied, saying that the High Court application had nothing to do with the victims. They also protested at the media reports of the High Court application which they termed misleading and inaccurate. Finally the Kenyatta defence termed as unprofessional the manner in which the CLR accused the defence team of unethical behaviour; they asked the Court to dismiss the CLR’s application.
The Prosecutor replied to the Kenyatta Defence application for an updated pre-trial brief by undertaking to file one, though she criticised the defence for bringing to the Chamber a matter that could easily have been handled amicably.
Trial Chamber V(B) in the Kenyatta case reached a decision allowing the Common Legal Representative access to specific confidential filings listed by the Court. The Chamber also reminded the parties that they should notify the CLR of legal filings relevant to the interests of the victims, even if the filings themselves remain confidential.
The ICC Prosecutor regularly accused the Kenya Government of failing to cooperate with her office in the run-up to the Kenya trial. Such failures included refusing to allow interviews with senior security officers (the Attorney-General claims a court order tied his hands) and refusing access to documents relating PEV.
Taking a trip down memory lane via the Wikileaks cables, it’s clear there is a disturbing pattern to Kenya’s non-cooperation with international criminal processes. When the International Criminal Tribunal for Rwanda (ICTR) tried to get help with locating wanted suspect Felicien Kabuga, this, according to the US embassy in Kenya, is the response they got from the GoK:
“[ICTR Chief Prosecutor Bubacar Jallow] noted that early in their investigation Kenyan intelligence officials had shown ICTR investigators a large file on Kabuga, but had never allowed them to examine its contents. He also noted that the ICTR investigators had been unable to gain Kenyan government cooperation in interviewing certain Kenyan citizens, including former government officials, regarding their ties to Kabuga. Furthermore, he described the ICTR’s unsuccessful efforts to petition the Kenyan government to freeze bank accounts and other assets identified as being owned or controlled by Kabuga. For his part [Foreign Minister] Tuju admitted that some officials in the government may have ties to Kabuga. He also accepted that corruption within the government and law enforcement agencies could be impeding the investigation. Jallow responded by pointing out that time is short because the ICTR’s mandate expires at the end of 2008.”
This is the accusation that the Prosecutor made about Kenya’s refusal to cooperate:
“…The GoK has failed to execute the OTP’s most important requests for documentary evidence. On 24 April 2012, the OTP requested from the GoK, among other things, financial and [REDACTED] records regarding the Accused in both Kenya cases (“RFA 45”)…
…The GoK has failed to facilitate the Prosecution’s access to individuals who may have provided the Prosecution with critical information regarding the police role in the PEV. On 27 August 2010, the OTP requested the GoK to facilitate Prosecution interviews of five Provincial Commissioners and five Police Officers. Since then, the OTP has exchanged over ten letters and deployed its staff on five separate missions to Kenya to follow up on this request. The interviews were never conducted.“
Though the Chamber has yet to rule on the Prosecutor’s allegations, it is in this context that none other than the current Foreign Minister (Cabinet Secretary for Foreign Affairs) Amina Mohamed went on the BBC’s Hardtalk programme to state her full confidence that both accused- Kenyatta and Ruto- are not guilty owing to a lack of evidence in the cases. Perhaps the evidence has been as lacking as Kenya’s cooperation…
The Defence in the Kenyatta case asked the court to compel the Prosecutor to give a thorough review of its pre-trial brief and re-submit a corrected version. The request also seeks disclosure of a compiled material allegation schedule.
The Kenyatta defence also replied to the Chamber request for additional submissions on the venue of the trial, it stated that it had no objections to the opening (or other material portion) of the trial being held in Tanzania or Kenya.
By contrast the Prosecutor argued against the change of venue. Her view was that since Francis Muthaura, who initially raised the matter was no longer a party to proceedings, and none of the current parties had sought a change of venue, the Trial Chamber could not do so on its own initiative. She also pointed out that the public perception of the court in Kenya was gravely hostile and the court would have trouble getting cooperation from the Government, while the Prosecutor would be impeded in her work. She told the Chamber that there was a risk of surveillance- especially electronic surveillance- of the OTP by Kenyan authorities. This risk, she argued, extended to the judges as well.
The Prosecutor also repeated her worries about witness intimidation and interference, both in Kenya and Tanzania.
The Registry while unopposed to sittings in Kenya or Tanzania, wanted them to be short- possibly limited only to opening statements and the testimony of an expert witness. This would limit the cost of the trial proceedings shuttling between The Hague and East Africa.
The Common Legal Representative felt that without a request from any of the parties, the Chamber could recommend to the Presidency a change of venue. In addition, over 90% of the victims he represents wanted the trials held at the Hague rather than Kenya or Tanzania.
In her opening statement, Fatou Bensouda, warned people allegedly bribing and intimidating ICC witnesses that her office was investigating.
Almost a week later, a local daily ran a story in which they detailed how a group was tracking down ICC witnesses, luring them out of hiding and offering them money to ‘forget’ their testimony. One passage, in particular, caught my eye:
“Another [alleged prosecution witness] claimed he quit the ICC train after he was told that his elderly mother was ailing and might die in his absence…[t]he man from Uasin Gishu County returned to Kenya late last month.“
It had echoes of the fate of a previous case involving Bernard Kiriinya, a police officer who was a witness to Police extra-judicial executions. Bernard thought he was safe hiding out with local Human Rights groups and telling them his chilling story. Unfortunately, in the Kenya Police, like in the Brazilian Police, ‘The System’ of police executioners takes care of its traitors.
Reports of what happened to Bernard Kiriinya conflict: some sources said Kiriinya came out of hiding to help his family move to safety, others claim he left his safe house after a visit from a friend while another allegation was that he was lured out by a phone call telling him that one of his children was either seriously ill or had been involved in an accident (like I said, the reports vary). What is unanimously agreed is that when Kiriinya came out of hiding, he got shot through the head.
Fortunately (if indeed bribery is good fortune), unlike in Kiriinya’s case, it seems the supposed witness hunters in the ICC Kenya cases are using the carrot rather than the stick to silence their prey.
Subsequent to a Status Conference held late last month, the Trial Chamber issued a second decision on the conduct of proceedings clarifying matters regarding the Prosecutor’s time estimates. The current estimates are that the Prosecutor will take approximately 7 months to present her case. Other issues such as the questioning of witnesses are also canvassed in the decision.
The Trial Chamber also allowed the Prosecutor to add 2 new witnesses to her trial list. The catch is that these witnesses will not appear until the tail end of the Prosecution’s case. This, the Judges felt, will give the Defence adequate time to investigate and analyse the new witnesses’ accounts. The Court also asked the Prosecutor to disclose the identities of these fresh witnesses to the Defence by 9 September 2013
The CLR in the Ruto Sang case explained to the court the situation behind the withdrawal of 93 victims from the Kenya cases. In his view, only 60 out of the 93 actually fell within the scope of the ICC case against Joshua Sang and William Ruto. Some of the 60 were of ‘uncertain status’
The CLR stated that an organisation called the Amani Group had helped register these victims and it was this organisation that had forwarded the letter to the court seeking to withdraw 93 from the proceedings. The CLR however interviewed individual witnesses who had withdrawn. According to him, 2 main reasons were advanced by the withdrawing victims set out below:
- the Victims were unsure how reparations from the Victims Trust fund would be distributed; they were opposed to collective compensation (e.g. building a school or hospital in the area) as perpetrator groups would, in the victims’ view, be beneficiaries as well.
- Some felt that the ongoing peace and reconciliation process required that they pull out of the ICC proceedings
- Others worried that those they thought were perpetrators were never charged, and they feel the ICC did not listen to their concerns about this.
- Another group are relying on a case filed in the High Court of Kenya seeking compensation for their suffering during the violence.
The CLR also drew attention to the alleged attempts by the Kenyan Security Services to interfere in his meetings with victims.The suggestion was that an intimidating atmosphere had clouded the Kenya cases, discouraging victims from taking part.
He concluded that since the victims had not individually communicated their request to withdraw (Amani Group made the broad claim on their behalf) they should be presumed to be continuing with their participation until they do so.
The Ruto Defence applied to the Presidency of the ICC to vacate the decision of the Plenary Judges. The Judges had rejected his request to have his trial moved either to Tanzania or Kenya. They want the decision vacated to facilitate additional submissions by the Prosecutor and the Defence or, in the alternative to be reviewed for procedural impropriety and unfairness. They feel that a late filing by the Prosecutor seemed to sway the Plenary (see this post about the filing and Gladwell Otieno’s letter); the Defence- in line with one dissenting judge- felt that the Prosecutor had ambushed legal process by filing the submissions so late. The Defence suggested that the Plenary can be recalled to review its own decision.
Although the opening statements of the parties proceeded as per the script that’s been written over the past year, one comment by Joshua Sang’s lawyer caught a number of us off-guard: though it should not have come as much of a surprise. At one point, Mr. Katwa-Kigen accused the prosecutor of placing the Kalenjin community- it’s culture and traditions- on trial. Though Katwa-Kigen is Joshua Sang’s lawyer, his utterance cuts across the cases. It creates the impression that the destiny of an ethnic community is at stake at the ICC; that the conviction of a Kalenjin defendant is a conviction of the Kalenjin Community.
The Prosecution was pretty prompt in protesting this characterisation of their case, but the comment was also unfortunate because it plays into the hands of those who believe that the ‘electoral truce’ between the Kikuyu and Kalenjin communities (which helped bring about the most peaceful poll in over two decades) hinges upon the outcome of the 2 trials.
Let’s hope all the parties will focus on defending the clients they’re paid to defend and not try to rope in millions of Kenyans as co-defendants.