The Appeals Chamber asked the parties for their views on the CLR’s application. The Prosecutor said she had no objection to the CLR’s participation.
In the same matter, the Ruto and Sang defence teams filed written submissions asking the Appeals Chamber to deny the Prosecutor’s appeal to change the temporal scope of the charges.
The CLR in the Kenyatta case asked the court to deny Kenyatta’s request to be excused from continuous presence at his trial.
The Government of Kenya asked to make amicus curiae submissions on Parliament’s resolution to withdraw Kenya from the Rome Statute.
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.
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 The CLR however interviewed individual witnesses who had withdrawn.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:
- 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.
- Some felt that the ongoing peace and reconciliation process required that they pull out of the ICC proceedings
- Others worried that those they thought were perpetrators were never charged, and they feel the ICC did not listen to their concerns about this.
- 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.
The prosecutor filed additional submissions on the conduct of the trial. She stated that she would raise any objections about questioning witnesses on a case by case basis.
She also asked to be permitted, after the Defence case, to rebut, explain or counteract any evidence given by the Defence which she could not have reasonably anticipated and which relates to a ‘significant issue’ in the case. She accepted that if there is such a rebuttal, the Defence should similarly be permitted to rebut the rebuttal.
The Prosecutor also wanted the Court to allow the party challenging a witness (the opposing party) to put their case to the witness. For example if the opposing party thinks the witness is untruthful, it should be allowed to confront the witness with the allegation to save time on having to call back the witness later to answer questions that could have been asked at the earlier hearing.
The Prosecutor also informed the Trial Chamber that if a witness turns hostile (becomes uncooperative to the party calling him or her), or changes their tune to favour the opposing party, the calling party should be allowed to challenge the hostile witness with his or her prior recorded statements. This is potentially a key battleground in this trial given the various media reports of witnesses abruptly changing or withdrawing their support from the OTP (and ICC in general).
The Prosecutor also reminded the court that it has requested notice that the form of individual criminal responsibility alleged against William Ruto may change during the trial.
The Sang Defence took issue with the 4th Report of the VPRS on the status of participating victims. The Defence feels the report is deficient because it does not mention the 93 victims who allegedly withdrew from the ICC proceedings [link]. They feel that the court should want to be clear on exactly how many victims are still participating. Furthermore, the Common Legal Representative is restrained to ask only questions at trial that touch on the interests of the victims, it is in the defence’s interest to know which pool of victims the CLR is representing. Sang’s defence want an accurate tally of the remaining participating victims and for the VPRS to give a report on the authenticity of the claim of 93 victims withdrawing.