Tag Archives: Amicus Curiae

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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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 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 10 February 2013

The Trial Chamber is preparing for a status conference in the run up to the start of the Kenyatta/Muthaura trial. It asked the participants (Defence and Prosecutor) to make submissions on matters such as the conditions of the summons to appear and any modalities for the defendants’ stay at the seat of the court. The status conference will be held on 14 February 2013 (next Thursday). The Accused, including Presidential Candidate Uhuru Kenyatta will be required there, either in person or via video-link.

The Prosecutor replied to the court, making short submissions. The main concern is that the accused may have/will violate the conditions of the Summons to Appear by interfering with prosecution witnesses. The submissions summarise previous alleged attempts to buy out witnesses or asking them to provide false testimony. The prosecutor also wants a public statement from the accused that they will attend trial. While aimed at all the accused, clearly the request for a public statement touches Kenyatta more; despite his promises to respect the court, his possible election as President offers the temptation to ‘Bashir’ the ICC.

The Kenya Human Rights Commission (KHRC) filed a request to appear as amicus curiae. In the request, they ask that witness identities not be disclosed sooner than is necessary. This is to protect witnesses from threats and intimidation. While the filing is not a model of clarity, it seems that KHRC seeks to support delayed disclosure applications made by the OTP. KHRC especially highlights witnesses who were PEV victims.

Unsurprisingly, given that the Court is already concerned about witnesses and has been permitting the OTP to delay disclosure of identities, the amicus curiae request was turned down. The Trial Chamber emphasised that it is aware of the issue of witness threats and the matter is already being handled by appropriate organs (VPRS and OTP). Therefore the KHRC proposed brief would not add anything new or helpful to the determination of the issues.

Recent Court Documents in the 2 ICC Kenya Cases 06 January 2013

The Trial Chamber previously ruled that any observations Sureta Chana wished to present about future representation of the victims had to be made as through the channel of amicus curiae. The former common legal representative subsequently made a request to appear as amicus in the Ruto/Sang case.

The Prosecutor in the Ruto/Sang case made a second application to delay disclosure of several items of evidence to the defence, citing worries about the protection of witnesses and the need to complete redactions. In the meantime, it has disclosed a further 25 items of evidence to the Ruto/Sang defence.

The Prosecutor in the Ruto/Sang case has put forward the name of Dr. Elizabeth Kaiser as a PTSD expert. More information about her qualifications is available here, althoughher full CV is still confidential. Her public Linkedin profile is available here.

Recent Court Documents from the ICC Kenya Cases 20 November 2012

The Ruto/Sang Defence Teams have filed a joint request to the court to order the prosecution to indicate if it intends to continue relying on certain witnesses at trial. These witnesses’ statements were given in evidence during confirmation proceedings, but under pseudonyms and with redactions.

 

The Trial Chamber has granted Kituo cha Sheria amicus curiae status in both the Ruto/Sang and Kenyatta/Muthaura cases. The organisation will now submit observations based on the court’s Victims Decision which set out the procedure for victims’ participation at trial. Already the Office of Public Counsel for the Victims and the Registry had filed their proposals on this matter. In the course of the Kenya cases, various individuals and groups have attempted to enter proceedings as amici curiae . Most attempts failed. But in this decision, the Chamber felt that Kituo could give real assistance to the OPCV, Victims Participation and Reparations Section, Registry and Common Legal Representative as to the implementation of the Victims Decision. In particular, the Chamber noted Kituo’s various programmes on community participation at the Truth, Justice and Reconciliation Commission as well as its outreach to PEV Victims gave it specialised knowledge and experience on the implementation of a system of victims representation and participation.

 

The Prosecution has applied to delay disclosure to the Kenyatta/Muthaura defence teams of the identities of six provisional witnesses until 30 days prior to the trial. According to the application, four of the witnesses are Mungiki insiders who can testify to a link between the accused, Mungiki, and the crimes alleged. The prosecutor claims that there are security concerns, making a dry comment on “the limited pool of senior Mungiki members who are still alive and willing to testify” (Former Special Rapporteur Phillip Alston’s report on Extra-judicial killings and the videotaped testimony of Police Constable Bernard Kiriinya vividly describe why the ‘pool’ is so limited)

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

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