Tag Archives: Appeal against Witness Protocol

Recent Court Documents in the 2 ICC Kenya Cases 27 February 2013

The Defence teams replied to the Prosecution Observations on the Conduct of it’s investigations. This matter arises from the Prosecutor’s application to amend the DCC to include the allegation that some victims of PEV were shot dead. The defence teams argue that Prosecution investigations were unnecessarily protrated and wholly insufficient. They ask the court not to allow any new evidence to support allegations excluded by the Pre-trial chamber as this may create a precedent for the Prosecutor to begin a case with inadequate evidence, hoping once the court confirms the case to continue with investigations up until trial. The result, they feel, will be a continued erosion of defendants’ rights

This, in fact is what the defence teams allege has already occurred in the Kenya cases. They claim that the Prosecutor disclosed a fraction of its evidence for confirmation purposes and brought a completely different case to the upcoming trial. A final point in the defence submissions is the argument that allowing new evidence on the factual allegations will be unjust as the defence has little time before trial to investigate the proposed witness testimony. The defence closes by asking for any decision on this amendment matter to be delayed until the hearing of its application to have the case referred back to the Pre-Trial Chamber.

In the same case, the Trial Chamber rejected the Defence application for leave to appeal the decision on witness preparation. The defence worried that the witness preparation decision was impractical and would prejudice the defence in their preparation for trial. The Trial Chamber felt that the 3 issues on which the defence sought to appeal failed to present ‘identifiable issues’ for a decision or amounted to mere disagreements with the Trial Chamber.

Recent Court Documents in the 2 ICC Kenya Cases 19 January 2013

The Prosecutor in the Kenyatta/Muthaura case has made delayed disclosure of a number of witness transcript summaries for 5 witnesses. Subsequent to this disclosure, the Prosecutor handed a further 7 summaries of witness statements to the defence. In both instances, the court had permitted the Prosecutor to delay disclosure to ensure the material was properly redacted.

Late last year, the Muthaura’s Defence made an application to move the trials away from the Hague and closer to ‘the grassroots’ as Politicians like to say. I blogged about this earlier, and as expected, the Chamber is seeking views as to the feasibility of moving the trial either to Kenya or Tanzania. The judges have asked the Prosecutor, Registry, Kenyatta Defence and Legal Representative of the Victims for their views. There may, I believe, soon also be amicus curiae applications on this issue given its importance to Defence rights, costs of the Trial and security and safety of witnesses.

The Prosecutor in the Ruto/Sang case has submitted additional material to the Trial Chamber on the matter of delayed disclosure of one of their witnesses (P-0534). The Prosecutor hopes the Trial Chamber will consider this material in deciding the application for delayed disclosure. In the same case, the Prosecutor submitted an additional 91 items of evidence to the defence. The OTP then added 494 pieces on top of the 91, and 17 more pieces of evidence shortly thereafter.

The Prosecutor in the Ruto/Sang Case has responded to the defence request for leave to appeal against the Trial Chamber’s decision on the witness protocol. The substance of the response is that the defence arguments against the Trial Chamber’s decision are either mere disagreements with the Trial Chamber’s decision (as opposed to matters affecting the fairness of proceedings), abstract arguments or misinterpretations of the Chamber’s decision.

UPDATE 22 JANUARY 2013: Some of the key matters that the Court and Participants may need to take into account in determining the suitability of shifting the venue to East Africa are:

1) Cost of accommodation, security and transport (especially if Nairobi is in the running as one of the venues!) of the Judicial, Registry, and VWU Staff.

2) Cyber-security and reliability of telecommunications (especially if re-located witnesses must testify through video-link from abroad)

3) Any additional technical and staff support and infrastructure available from the EAC, the Arusha Based ICTR or even the less-than-friendly African Union (Addis venue, anyone?)

4) The potential for the identification of and threats to witnesses, victims or their families. Whether or not a threat is credible, even a perceived threat may discourage witnesses from testifying.

5) Disruptions and delays, if the trials move to Kenya, taking into account a new and vastly expanded government will be taking over shortly before the trials start.

6) Chances of trial proceedings being disrupted by acts of violence (unruly demonstrations, counter-demonstrations, terror attacks).

7) Speed with which negotiations with willing hosts can be concluded and an Agreement executed.

8) Funding logistics (dealing with local banks; ensuring secure and speedy movement of court funds)

These are just a few of the things that may come into play as the Court and the Participants deliberate.

Recent Court Documents in the 2 ICC Kenya Cases 18 January 2012

Subsequent to the Decisions by the Trial Chamber on the Modified Charges, the Prosecutor in the Ruto/Sang case and the Kenyatta Muthaura case has amended the Documents Containing Charges to bring them in line with the court’s rulings.

On the 9 January deadline for disclosure, the Prosecutor in the same case submitted the materials that she intends to rely on to the Defence. These include a list of witnesses, a summary of the main facts that each witness will testify about, a list of the Prosecutor’s trial evidence and the Prosecution pre-trial brief. The Prosecutor estimates that she will require 826 hours of trial time (assuming at least 6 hours per court-day, that makes it about 138 trial days). Along with the submission, the Prosecution has further complained about lack of cooperation from the Kenya government in availing access to potential evidence; there also appears to be a lack of cooperation from certain media houses who have video and other audio-visual evidence in their possession but have not been willing (yet) to hand it over to the Prosecution.

The Prosecutor has made a similar final submission of materials in the Kenyatta/Muthaura case, where she estimates she will need 572 hours of trial time (about 95 trial days) to make her case. Here too, she complains of lack of access to evidence through non-cooperation. If her requests for cooperation (as well as various applications to the court seeking to enforce cooperation) are successful, it’s possible that the list of evidence in both cases will grow. The Prosecutor separately submitted potentially exculpatory evidence to the defence.

The Ruto/Sang Defence seek to appeal the Trial Chamber’s Decision on Witness Preparation. They are particularly worried that the Trial Chamber may allow contact  between the witness and the party calling the witness up to 24 hours prior to testimony. They also object to the requirement that both Prosecution and Defence must avail witness statements prior to witness preparation sessions and that witness preparation sessions should be recorded.

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