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 2 ICC Kenya Cases 19 September 2013

The Defence in the Kenyatta case asked the court to compel the Prosecutor to give a thorough review of its pre-trial brief and re-submit a corrected version. The request also seeks disclosure of a compiled material allegation schedule.

The Kenyatta defence also replied to the Chamber request for additional submissions on the venue of the trial, it stated that it had no objections to the opening (or other material portion) of the trial being held in Tanzania or Kenya.

By contrast the Prosecutor argued against the change of venue. Her view was that since Francis Muthaura, who initially raised the matter was no longer a party to proceedings, and none of the current parties had sought a change of venue, the Trial Chamber could not do so on its own initiative. She also pointed out that the public perception of the court in Kenya was gravely hostile and the court would have trouble getting cooperation from the Government, while the Prosecutor would be impeded in her work. She told the Chamber that there was a risk of surveillance- especially electronic surveillance- of the OTP by Kenyan authorities. This risk, she argued, extended to the judges as well.

The Prosecutor also repeated her worries about witness intimidation and interference, both in Kenya and Tanzania.

The Registry while unopposed to sittings in Kenya or Tanzania, wanted them to be short- possibly limited only to opening statements and the testimony of an expert witness. This would limit the cost of the trial proceedings shuttling between The Hague and East Africa.

The Common Legal Representative felt that without a request from any of the parties, the Chamber could recommend to the Presidency a change of venue. In addition, over 90% of the victims he represents wanted the trials held at the Hague rather than Kenya or Tanzania.

Recent Court Documents in the 2 ICC Kenya Cases 15 September 2013

The CLR in the Ruto Sang case explained to the court the situation behind the withdrawal of 93 victims from the Kenya cases. In his view, only 60 out of the 93 actually fell within the scope of the ICC case against Joshua Sang and William Ruto. Some of the 60 were of ‘uncertain status’

The CLR stated that an organisation called the Amani Group had helped register these victims and it was this organisation that had forwarded the letter to the court seeking to withdraw 93 from the proceedings. The CLR however interviewed individual witnesses who had withdrawn. According to him, 2 main reasons were advanced by the withdrawing victims set out below:

1. the Victims were unsure how reparations from the Victims Trust fund would be distributed; they were opposed to collective compensation (e.g. building a school or hospital in the area) as perpetrator groups would, in the victims’ view, be beneficiaries as well.
2. Some felt that the ongoing peace and reconciliation process required that they pull out of the ICC proceedings
3. Others worried that those they thought were perpetrators were never charged, and they feel the ICC did not listen to their concerns about this.
4. Another group are relying on a case filed in the High Court of Kenya seeking compensation for their suffering during the violence.

The CLR also drew attention to the alleged attempts by the Kenyan Security Services to interfere in his meetings with victims.The suggestion was that an intimidating atmosphere had clouded the Kenya cases, discouraging victims from taking part.

He concluded that since the victims had not individually communicated their request to withdraw (Amani Group made the broad claim on their behalf) they should be presumed to be continuing with their participation until they do so.

The Ruto Defence applied to the Presidency of the ICC to vacate the decision of the Plenary Judges. The Judges had rejected his request to have his trial moved either to Tanzania or Kenya. They want the decision vacated to facilitate additional submissions by the Prosecutor and the Defence or, in the alternative to be reviewed for procedural impropriety and unfairness. They feel that a late filing by the Prosecutor seemed to sway the Plenary (see this post about the filing and Gladwell Otieno’s letter); the Defence- in line with one dissenting judge- felt that the Prosecutor had ambushed legal process by filing the submissions so late. The Defence suggested that the Plenary can be recalled to review its own decision.

Further Developments in the Ruto/Sang Case

The Prosecutor applied for leave to appeal the Pre-Trial Chamber’s decision rejecting her application to amend the temporal scope of charges. The Prosecutor wanted factual allegations beginning on 30 December 2007 to be included in the charges. Both the Sang and Ruto Defence teams (here and here) object to the application for leave arguing that there is no appealable issue raised, the issues raised would not affect the fairness or expeditiousness of proceedings and a decision by the Appeals Chamber would not advance proceedings.

The Plenary of Judges of the ICC rejected the joint Ruto-Sang Defence application to change court sittings to East Africa (either Kenya or Tanzania). 9 judges voted against changing the place of sitting to Kenya, 5 voted for this option. 9 judges voted against changing to Tanzania, 4 voted against and 1 abstained.

Though none of the majority judges objected to the principle of the request, many were swayed by security concerns for victims and witnesses, by the potential for demonstrations and disruption and some were convinced the cost of holding parts of the proceedings in East Africa were not justifiable. In addition, according to dissenting Judge Eboe-Osuji, some may have been swayed by a late submission by the OTP on the eve of the Plenary decision that seemed to change the OTP position from being in favour of a trial close to the site of alleged crimes to one in which the Prosecutor felt it was not in the ‘interests of justice’ for the trial to be held in Kenya or Tanzania. The judge thought this late submission an ‘ambush’ by the Prosecutor, which gave the Defence no chance to reply prior to the Plenary Decision.

An open letter to the President of the ICC, written by Gladwell Otieno and arguing against holding the cases in Kenya, was the target of scathing words from Judge Eboe-Osuji. The judge noted that Otieno was a petitioner against William Ruto and Uhuru Kenyatta’s election as Deputy President and President respectively.

Here is the Supreme Court Judgement upholding that election as well as the People’s Court website run by, among others, Gladwell Otieno’s organisation. The People’s Court is an attempt to keep public debate about the March 4 Election litigation alive now that the election of Kenyatta and Ruto has been upheld.

Judge Eboe-Osuji felt that whereas Otieno’s letter had allegedly stated concerns about the politicisation of the cases if brought to East Africa, she, in fact, was contributing to the perception of politicisation by her direct involvement in this matter given her prior interest in seeking to nullify the political victory of the accused. It did not help, according to the Judge, that the Prosecutor appeared to have altered her views on the change of venue in a manner that coincided with Gladwell Otieno’s letter.

A change of venue application is also pending in the Kenyatta case; its prospects don’t look promising in light of the reasons the judges gave for rejecting the Ruto-Sang application.

The Trial Chamber rejected the parties’ suggestions for an ‘on-off’ court sitting schedule. However, the judges kept open the door that they may vary this schedule once the Kenyatta case starts.

The Trial Chamber also decided on the disclosure of screening notes of 12 Prosecution witnesses who will not be called at trial. The Court ordered disclosure of the notes to the Ruto Defence in full.

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

The fourth periodic report on the status of the victims in the Kenyatta case was submitted. In it, the CLR gave a brief summary of the situation of the victims in the run-up to the upcoming trial. The desperate situation and dire poverty of the victims stands out. They also carry great hope- perhaps excessive hope- in the ability of the Trust Fund for Victims to assist them in bettering their lives. But a number of victims also worried that the general security situation Kenya as the ICC trials get started. A lack of of clarity about  the status of the case was causing others to lose interest in the ICC altogether.

The Kenyatta Case Trial Chamber (Chamber V(B)) asked the participants to give fresh views on the question of where the court should sit. This was partly due to the fact that it was Francis Muthaura who filed the initial application seeking the change of venue. Now that he is no longer a part of the case, his application, according to the court, is no longer valid and the process had to be re-started. The second reason for seeking fresh views was that the Presidential Elections were held while Muthaura’s application was pending. This, and the fact that the accused now hold the highest offices in Kenya’s executive branch, were matters the court felt were directly relevant to the question of the venue of the trial.

In another matter related to Francis Muthaura, the court asked his former legal team for their views on whether the CLR should have access to certain confidential  or redacted filings whose access is controlled by the Defence. The Muthaura Defence team (some of whom now represent William Ruto) replied, opposing the CLR’s access to some filings- such as National Security Advisory Committee minutes and certain other material provided to Muthaura’s defence team by the Kenyan Government. Muthaura’s lawyers however accepted that the CLR could receive a few documents if access to them were deemed relevant to the personal interest of the victims he represents. The Defence also wants redactions on some the documents maintained.

Recent Updates to the 2 ICC Kenya Cases 09 July 2013

The Legal Representative for the Victims in the Kenyatta Case asked the court to ensure that he is notified of all confidential filings and that he is granted access to those that affect the ‘personal interest’ of the Victims he represents. He complained that despite him making the same request to the parties to the case, he has not been successful in getting such access or notification of confidential filings.

Both the Prosecutor and Defence have indicated that they have no problem with providing some access to the Legal Representative for the Victim- in relation to specific documents the Representative asked for.

The Trial Chamber ruled on the request by the Defence for access to OTP-4’s emails and all documents in his asylum application. The judges disagreed with the defence’s argument that OTP-4 allegations around the State House meeting were still at issue. But they still felt that because the Prosecutor was still maintaining her allegation about Defendants interfering with OTP-4 (allegations she claims come from OTP-4), the documents would still be relevant for interrogating OTP-4’s credibility. The Trial Chamber held that it was not enough for the Prosecutor to say that the information requested by the Defence was not in her possession, since she had promised jointly with the defence to do her best to investigate the situation around OTP-4 (prior to dropping him as a witness). As part of that promise, she had to use her best efforts to obtain the relevant evidence i.e. access to OTP-4’s emails and documents so that the Court can address the allegations that OTP-4 was subjected to interference by the defence.

The Trial chamber also ruled that in view of:

1) the amount of delayed Prosecution disclosure,

2) the new witnesses to be heard, the recently updated DCC,

3) additional disclosure as a result of Prosecutor’s certification submission,

4) and the transcripts that the Defence had received only recently,

the trial could not start on the prior scheduled date June 9th. The court however did not accept the defence request to postpone to January next year, holding that 12 November 2013 would give the defence adequate time to prepare. This is the second change of date for the trial’s start: the Trial Chamber had already vacated the earlier date of April 11 2013.

The Trial chamber also recommended to the Presidency holding parts of the trial in East Africa, though they suggested further consultation with Tanzania to find out if the country were ready to host the ICC. The judges felt that the commencement of trial and certain other proceedings to be decided in the course of trial should be held close to the site of the alleged offences and close enough for victims to effectively participate.

Recent Court Documents in the 2 ICC Kenya Cases 13 March 2013

The VWU asked the Trial Chamber to clarify the witness protocol with regards to contact between the Parties and the witnesses that they intend to call. Link to the Ruto/Sang request here; link to the Kenyatta/Muthaura request here.

The Registry filed observations in the Ruto/Sang case on the request to shift the trial venue to East Africa. The observations are much the same as those that the registry made in the Kenyatta/Muthaura case, which I blogged about earlier. The Prosecutor also made her observations on this issue (largely repeating the issues of concern in her Kenyatta/Muthaura submissions.)

Comments Received About the Proposed Change of Trial Venue

Both the Muthaura and Ruto/Sang defence teams indicated that they wish the venue of the trials to be closer to Kenya. The Trial Chamber (after a decision of the Presidency of the ICC) thereafter ordered participants to submit their views on this matter. Below are the responses received solely for the Kenyatta/Muthaura case.

 

In its observations, the Registry wants the Agreement on Privileges and Immunities (APIC) ratified by whichever country (Kenya or Tanzania are so far the only contenders) will host the trials. Kenya has neither signed nor ratified the APIC, though an ‘exchange of letters’ concluded last year covered the same subject matter. Tanzania has signed but not ratified the APIC; in other words, it is not legally bound by its terms, though it has expressed through its signature its approval of the APIC. The registry is happy with the security and infrastructure at the Arusha-based International Criminal Tribunal for Rwanda. The registry is less certain about security in Kenya given that the trials will start during the Post-Election period. The Registry also suggests that hearings away from the seat of the court should be limited to a few weeks to keep costs down. Another Registry concern is that court-approved Kiswahili translators will be busy  at the Hague (the Bemba trial), therefore the court might need freelance translators if the trials move to East Africa. The submission also addresses logistical matters such as video/audio links, dissemination of public information, setting up of secure phone-links (for privileged or confidential conversations by participants), lack of technology for image and voice distortion for protected witnesses at the ICTR premises. The Registry conclusion is that Arusha is the best place if the trials are to move to East Africa.

 

The majority of victims, through their Common Legal Representative, want the Kenyatta/Muthaura case held at the Hague. Bear in mind that the CLR only consulted 155 of the victims permitted to take part in the trial; this may not necessarily be the view of the majority of victims of PEV. The victims consulted worry that the closer the defendants are to Kenya, the greater the possibility of of threats, intimidation and bribery. So the further away the trials are, the better for the victims’ security and the integrity of the process. A small minority wanted the trials in Nairobi so they could attend in person; worryingly, some of the victims consulted had already lost interest in the trial process as it had taken too long, in their view.

 

The Kenyatta defence also filed brief observations. The defence limited its views to affirming that the defendant will fully abide by any order by the court as to the venue of the Trial.

 

The Prosecutor agreed in principle that the proceedings should be brought closer to the victims but emphasised that security of witnesses, victims and ICC staff should be the priority. The Prosecutor also wants expeditious proceedings; moving the trials may add to the delay. She also questions whether Kenyans would in fact be better disposed to proceedings if they were brought closer to Kenya; there are fears (to which the victims also alluded) that the integrity of the process may be undermined by those with influence if the trial moves to East Africa. The Prosecutor suggests having some hearings (opening, closing statements, expert witness testimony, any unsworn statements by the accused and the testimony of the accused) in East Africa, while the rest of the trial will take place at the Hague.

Tanzania ready to host ICC on Kenyans’ cases – Politics and policy – businessdailyafrica.com

http://www.businessdailyafrica.com/Tanzania-ready-to-host-ICC-on-Kenyans-cases-/-/539546/1688140/-/8y9xt9/-/index.html

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

The Trial Chamber in the Ruto/Sang case has asked participants to submit observations on the modalities that need to happen for a change of venue of the trial to take place. This is part of preparation for a status conference that will be held before trial. I outlined some of these modalities in this post last month.

 

Although the Defence Teams in the Kenyatta/Muthaura case had already sought a change of venue and made the application to the presidency, it is only recently (24 January 2013) that the Ruto/Sang defence made a similar joint request. I asked the question in this blog post last month whether, if the Kenyatta/Muthaura application was successful, the result could be 2 trials going on simultaneously at The Hague and in East Africa and whether this result was practical (given that the same 3 judges sit in both trial benches). The Ruto/Sang defence evidently was already thinking about this and they’ve now filed their application to have the trial moved to the same venue as the Kenyatta/Muthaura case. The Trial Chamber has asked other trial participants for their views on the issue. This will be an interesting ruling from the ICC when it comes out: do they hold the 2 trials in the same venue? Could they hold one in Kenya and another in Tanzania? If they refuse either application, will it mean that for practical purposes they must also refuse the second application?