Recent Court Documents in the 2 ICC Kenya Cases 20 November 2013

The Prosecutor in the Ruto/Sang case asked to appeal the decision allowing the disclosure of Prosecution Intermediaries to the Defence. The Trial Chamber rejected her request for leave.

The same Trial Chamber permitted the Government of Kenya to file observations on the effect of the Parliamentary resolutions seeking Kenya’s withdrawal from the ICC Treaty.

The Kenyatta defence asked the Trial Chamber for a stay of proceedings prior to trial due to what they allege has been abuse of process by the Prosecutor. They also wanted a evidential hearing to discuss these alleged abuses. Kenyatta’s lawyers claimed that, among other things, OTP-11 and OTP-12 conspired to tamper with evidence collection and interfere with potential defence witnesses.

The Prosecutor in the Kenyatta case asked the Trial Chamber for protective measures for its first ten witnesses, including witnesses 2, 11, 217, 232, 429, 430, 493, and 505. These measures would include voice and face distortion; pseudonyms and some in camera sessions (where sessions are closed from the public). Some of the protective measures will safeguard the witnesses who have been relocated, others are to protect persons who are not before the court. In addition witnesses 11, 217, 429, 430, 493 and 505 would, according to the OTP, need protection because the nature of their evidence may be self-incriminatory.

The Kenyatta Trial Chamber decided to excuse Kenyatta from being continuously present throughout his trial, except during:

i.                     the entirety of the opening statements of all parties and participants;

ii.                   the entirety of the closing statements of all parties and participants;

iii.                  when victims present their views and concerns in person;

iv.                 the entirety of the delivery of judgement in the case;

v.                   the entirety of the sentencing hearings (if applicable);

vi.                 the entirety of the sentencing (if applicable);

vii.                the entirety of the victim impact hearings (if applicable);

viii.              the entirety of the reparation hearings (if applicable); and

ix.                 any other attendance directed by the Chamber.

Kenyatta promptly filed a waiver of his right to be present at his trial.

Judge Ozaki dissented from the main judgement which largely mirrored and elaborated on the Ruto Absence decision. She, however, felt that there was no discretion granted to the court to waive the presence of the accused except in truly exceptional and limited circumstances such as a personal tragedy- such as in the trial of Jean-Pierre Bemba Gombo- or a national tragedy such as the Westgate Attack. Furthermore, granting a waiver to Kenyatta would violate the obligation to treat all the accused equally.

Judge Eboe-Osuji also attached a separate opinion to the decision. In it, he clearly shows the influence that the protests from the African Union and the member states have had on the question of how to treat Kenyatta and Ruto (always, Sang sits forgotten). Judge Eboe-Osuji not only felt it was worth mentioning the complaints extensively, but also argued that it might be wrong as a matter of law to ignore the views of the state parties on this particular issue of the permission granted to Ruto and Kenyatta to be absent from much of their trials.

To some extent I have sympathy with Judge Eboe-Osuji’s views: as I mentioned previously, the ICC was arguably too defensive in its initial appraisal of the complaints by African states: this may have given the impression that the court was not listening to criticism. In addition, I sympathise with Judges of the two Kenya Trial Chambers who must somehow drag these trials to conclusion in the face of two accused- William Ruto and Uhuru Kenyatta- who clearly regard the ICC as a pointless foreign annoyance now that the long-coveted offices of President and Deputy President have been attained.

The Judges see the danger that Ruto and Kenyatta present: that faced with a situation where they cannot perform both their duties to the court and to Kenyans, the two of them will not do the honourable thing and resign from office. More likely, they will resign from being ICC accused, abscond and hunker down to take the consequences.

But I think the trial chambers over-reached in their reading of the statute in order to allow prolonged absence for the two on the basis that the  ‘extraordinary functions’ of their state offices created exceptional circumstances that warranted such prolonged absence. Furthermore, the functions of Deputy President (DP), as defined in our Constitution (Chapter 9 Part 2), are arguably not as ‘extraordinary’ as the Judges in the Ruto Decision were led to believe when excusing Ruto from continuous presence at his trial. The constitution makes quite clear that Kenyatta has a deputised assistant and not a co-president, irrespective of internal power-sharing arrangements within the ruling coalition.

Yet ultimately, though not thrilled about the prospect of defendants absconding and the even less thrilled by the prospect of yet more ICC arrest warrants that might be ignored- the last thing we need is a UHURUTO-WATCH website- I think that the two Trial Chambers must simply take up the hard task of crafting another way to ensure the accused who hold office comply with their national and international duties. Success is not guaranteed, but the same could be said about any endeavour to bring justice for victims of international crimes.

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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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