Monthly Archives: October 2013

Recent Court Documents in the 2 ICC Kenya Cases 30 October 2013

The Common Legal Representative for Victims in the Ruto/Sang case asked permission to participate in the Prosecutor’s appeal to include the dates of 30th and 31st December in the temporal scope of charges. The CLR argues that if these dates are not included, victims who suffered harm during those two days will be permanently prevented from presenting their views to the court in the Ruto/Sang case (including seeking reparations if either accused is found guilty).

The Kenyatta Trial Chamber found that the conduct of the Kenyatta defence in the High Court case it filed seeking mobile telephone records did not violate the confidentiality of victims and protected witnesses.

The Prosecutor in the Kenyatta case made a second submission on the conduct of proceedings.

After the Kenyatta Defence made a request for conditional excusal from trial, the Prosecutor responded, asking the Trial Chamber to reject the request.

The CLR in the Kenyatta case joined the Prosecutor in demanding that the request be turned down.

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

The first private sessions of the Ruto/Sang trial have been held with Witness 536. The court wants to preserve the principle of public trials so  it asked the calling party (the side calling the witness) to produce a redacted transcript of any closed hearing within 24 hours of receiving the confidential transcript. The other parties have a chance to respond to this redacted transcript within 2 days. Thereafter it will be sent to the registry and hopefully released to the public.

The same Trial Chamber also rejected the Ruto Defence request to appeal against the decision allowing the Prosecutor to add two witnesses to her case.

The Appeals Chamber (Judge Usacka partly dissenting) rejected Nigeria and Ethiopia’s request to give observations on the appeal against the decision on Ruto’s absence from court.

Pursuant to an order by the Appeals Chamber, the Prosecutor responded to the defence request to vary the decision on suspensive effect. The Prosecutor asked the Judges of Appeal not to change their decision on suspensive effect. She argued that as an accused answering summons, Ruto cannot expect life to ‘continue as normal’ even if he wants to be in Kenya to lend a hand on the matter of the Westgate massacre.

The VPRS gave its 5th report on the status of victims in the Ruto/Sang case.

The Ruto Defence asked the trial chamber not to allow the Prosecutor to re-characterise the mode of liability with which she charged Ruto. The prosecutor wants to charge Ruto with forms of secondary (accessory) liability.

Recent Court Documents in the 2 ICC Kenya Cases 10 October 2013

The Prosecutor filed a document setting out the facts and circumstances justifying a legal re-characterisation of William Ruto’s criminal responsibility.

The Ruto/Sang Trial Chamber directed the parties to give their views on the impact on the case of the Kenyan Parliament’s motion to withdraw from the ICC- particularly with respect to in-court protective measures for witnesses. The Prosecutor, Defence and Common Legal Representative all filed replies.

Nigeria and Ethiopia also joined the bandwagon of African states seeking to enter the appeal proceedings in the Ruto/Sang case. The appeal concerns the decision permitting Ruto to be absent from large parts of his trial. The Appeals Chamber directed the Prosecutor and the Defence to give views on the Nigerian and Ethiopian applications. The Prosecutor gave her response, asking for the requests to be rejected. The defence asked the Appeals Chamber to accept the states’ requests.

After being allowed to give their views, the other five East African countries- Burundi, Rwanda, Uganda, Tanzania and Eritrea- filed joint amicus curiae observations. The Prosecutor replied, asking the court to dismiss the observations.

In the wake of the Westgate Mall massacre, the Ruto defence asked the Appeals Chamber to review its order granting suspensive effect to the Trial Chamber decision on Ruto’s presence. The suspensive order meant that Ruto had to be present throughout his trial until the appeal was heard and determined. The defence argued that as Deputy President the mandate for internal security fell under his docket, necessitating his presence in Kenya to deal with the terrorist attacks.

The Appeals Chamber rejected the request.

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

The Ruto/Sang Trial Chamber ordered that the victim applications of several OTP witnesses (which make them dual-status witnesses) should be confidentially disclosed to the parties.

The Trial Chamber also allowed the Common Legal Representative to prepare Witness 526- who recently completed her testimony- for purposes of examining her in court regarding victims’ interests. The CLR made this request because Witness 526 has a special status as both a victim and a witness

The Kenyatta defence applied for their client to be excused from continuous attendance at his trial. The application provides for Kenyatta’s physical presence at the opening and closing of the trial; but in any other situation where the court requires his presence, he would appear via video-link.

The Trial Chamber V(B)- the Kenyatta trial chamber- allowed the Prosecutor to disclose a less redacted version of witness 232’s victim application.

The same Trial Chamber refused the defence request an adjournment of the trial in order to ‘develop’ software and technology that could be used to analyse data from mobile phone records.

The Prosecutor in the Kenyatta case sought permission to add 2 more witnesses to her case. This follows the withdrawal of witness 426. The two witnesses are referred to as P-066 (who will testify to the nature and extent of sexual violence in the context of the Kenyatta charges) and P-548 (a Mungiki insider testifying as to the alleged Mungiki link with Kenyatta, coordination and organisation of attacks).

The CLR asked the Court to grant the Prosecutor’s request to add witnesses.

The VPRS gave its fifth report on the status of victims in the Kenyatta case.

Recent Court Documents in the 2 ICC Kenya Cases 8 October 2013

The Prosecutor in the Ruto/Sang case applied to the Court for certain in-court protective measures for some of her witnesses. The court granted part of the request: one witness would testify under a pseudonym, with voice and face distortion. Other witnesses will be monitored, with update information passed to the Court in case they require such protection. The other request by the Prosecutor for the use of closed sessions and redaction (censorship) of the public transcripts would be decided on a case-by-case basis as need arises, rather than generally for each witness.

The East African countries of Tanzania, Uganda, Rwanda, Burundi and Eritrea submitted notes verbal (unsigned diplomatic statements explaining the countries’ positions or requesting further action) as well as applications to be friends of the court (amici curiae). Eritrea is not a state member of the ICC. The Registry passed these documents on to the Appeals Chamber.  These five countries wanted to be friends of the court in the Prosecutor’s appeal against the Decision on William Ruto’s continuous presence at trial.

The Appeals Chamber sought the opinions of the Prosecutor and the Defence as to the applications by the states.

The Prosecutor felt the issue was narrow and legal in nature, therefore the observations of the state would not really assist the court in making a decision.

The Defence felt the Countries observations would be helpful to the court given that matters of state cooperation would surface in the course of the appeal.

The Appeals Chamber allowed Tanzania, Rwanda, Burundi, Uganda and Eritrea to file observations as friends of the court. Judge Usacka disagreed with the decision of the majority of the judges.

Recent Court Documents in the 2 ICC Kenya Cases 3 October 2013

After the Prosecutor failed to get permission to alter the temporal scope of the charges against William Ruto, the Pre-Trial Chamber granted her leave to appeal on the following issue:

“Whether the Single Judge erred in interpreting the term ‘permission’ referred to in article 61(9) of the Statute so as to include factors relevant to the specificities of the case when exercising her discretion; and whether, consequently, in this particular case, the Single Judge abused her discretion in rejecting the Amendment Request”

Joshua Sang added Caroline Buisman as associate counsel on his legal team. She had previously been a defence lawyer at the Special Tribunal for Sierra Leone as well as the International Criminal Tribunal for the former Yugoslavia.

After the Common Legal Representative in the Ruto/Sang case raised concerns about the safety and security of victims he represents, the Trial Chamber asked the parties to respond to his report and also invited the Registry (including the Victims Participation and Reparations Section and the Victims and Witnesses Unit) to give its observations.

The Presidency of the ICC rejected the Ruto Defence request to vacate the decision of the plenary of judges (all the ICC judges). The plenary, by a majority, had refused to allow the trials to be moved to Tanzania or Kenya. The Presidency felt it had no authority under the statute to vacate the decision and, after consulting with the ICC judges present when the plenary decision was taken, it was clear that they too, saw no reason to revisit their decision.

Recent Court Documents in the ICC Kenya Cases 2 October 2013

The Ruto/Sang Trial Chamber sought responses to the application for appeal filed by the Ruto Defence. The Defence had appealed the decision by the Chamber to allow the Prosecutor to add two more witnesses to her list.

The Chamber also asked the Prosecutor and the CLR to give more detail to their applications seeking a re-characterisation of Ruto’s individual criminal liability. The OTP wants to change it’s charges from indirect co-perpetration to forms of accessory/contributory liability

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

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