Recent Court Documents in the 2 ICC Kenya Cases 9 September 2013

The prosecutor filed additional submissions on the conduct of the trial. She stated that she would raise any objections about questioning witnesses on a case by case basis.

She also asked to be permitted, after the Defence case, to rebut, explain or counteract any evidence given by the Defence which she could not have reasonably anticipated and which relates to a ‘significant issue’ in the case. She accepted that if there is such a rebuttal, the Defence should similarly be permitted to rebut the rebuttal.

The Prosecutor also wanted the Court to allow the party challenging a witness (the opposing party) to put their case to the witness. For example if the opposing party thinks the witness is untruthful, it should be allowed to confront the witness with the allegation to save time on having to call back the witness later to answer questions that could have been asked at the earlier hearing.

The Prosecutor also informed the Trial Chamber that if a witness turns hostile (becomes uncooperative to the party calling him or her), or changes their tune to favour the opposing party, the calling party should be allowed to challenge the hostile witness with his or her prior recorded statements. This is potentially a key battleground in this trial given the various media reports of witnesses abruptly changing or withdrawing their support from the OTP (and ICC in general).

The Prosecutor also reminded the court that it has requested notice that the form of individual criminal responsibility alleged against William Ruto may change during the trial.

The Sang Defence took issue with the 4th Report of the VPRS on the status of participating victims. The Defence feels the report is deficient because it does not mention the 93 victims who allegedly withdrew from the ICC proceedings [link]. They feel that the court should want to be clear on exactly how many victims are still participating. Furthermore, the Common Legal Representative is restrained to ask only questions at trial that touch on the interests of the victims, it is in the defence’s interest to know which pool of victims the CLR is representing. Sang’s defence want an accurate tally of the remaining participating victims and for the VPRS to give a report on the authenticity of the claim of 93 victims withdrawing.

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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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