Tag Archives: Common Legal Representation

Recent Court Documents in the 2 ICC Kenya Cases 18 November 2013

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.


Recent Court Documents in the 2 ICC Kenya Cases 25 September 2013

The Common Legal Representative of the Victims (CLR) in the Kenyatta case asked the Trial Chamber to compel the Kenyatta defence to state whether it had supplied information to telecoms companies in Kenya that might be used to identify witnesses. This came after the revelation that the Kenyatta defence was, through a confidential application in the High Court, seeking mobile telephone data of certain individuals connected with the Kenyan cases. The CLR worries that by allegedly releasing such data, the Professional Code of Conduct and the Code of Conduct for investigators may have been breached.

The Kenyatta defence replied, saying that the High Court application had nothing to do with the victims. They also protested at the media reports of the High Court application which they termed misleading and inaccurate. Finally the Kenyatta defence termed as unprofessional the manner in which the CLR accused the defence team of unethical behaviour; they asked the Court to dismiss the CLR’s application.

The Prosecutor replied to the Kenyatta Defence application for an updated pre-trial brief by undertaking to file one, though she criticised the defence for bringing to the Chamber a matter that could easily have been handled amicably.

Trial Chamber V(B) in the Kenyatta case reached a decision allowing the Common Legal Representative access to specific confidential filings listed by the Court. The Chamber also reminded the parties that they should notify the CLR of legal filings relevant to the interests of the victims, even if the filings themselves remain confidential.

Recent Court Documents from the ICC Kenya Cases 30 November 2012 (Part 1)

Wilfred Nderitu has been appointed to be common representative of the victims in the Ruto/Sang case. He is a practicing advocate in Kenya (there’s even a brief Wikipedia entry in his honour) and an impressive resume with stints as lead prosecutor, co-counsel, duty counsel and amicus curiae in both the International Criminal Tribunal for Rwanda and the International Criminal Court. He is also former head of ICJ-Kenya.

Fergal Gaynor has been appointed to be common representative of the victims in the Kenyatta/Muthaura case. He has significant experience in International Criminal Practice, having worked at the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the UN International Independent Investigation Commission (investigating the killing of former Lebanese Prime Minister Rafik Hariri).

One of the key criteria for selection of a common representative was that he or she would maintain a permanent presence in Kenya. Given this fact, the Trial Chamber has expressed its expectation that representation of victims at court will be conducted by members of the Office of Public Counsel for Victims. The common legal representative will be expected to be in the ‘field’ in Kenya for most of their time.

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)

Recent Court Documents from the 2 ICC Kenya Cases 12 November 2012

  1. Decisions on Supplementary Protocol Concerning Handling of Confidential Information concerning Victims (Ruto/Sang and Kenyatta/Muthaura)- this decision explains to the parties (Prosecution and Defence in the Ruto/Sang case) the process of contacting victims while respecting their confidentiality. The common legal representative of the victims is the key channel for any contact.
  2. Decision on Updated Report on the Joint Instruction of Experts– Trial Chamber V directs the parties (Ruto/Sang) to continue seeking agreement on the use of joint expert reports at the trial. Use of joint experts helps prevent expensive and time-consuming ‘duels’ of experts between the prosecution and defence at trial. The parties in this case are currently negotiating joint experts on Post Traumatic Stress Disorder (PTSD), Social and Political Background of the case and Satellite Imagery.
  3. Request to present the views and concerns of the victims on their legal representation at the trial phase– while I won’t comment on the actual application by Representative Sureta Chana (Ruto/Sang case), I note that it comes hot on the heels of Morris Anyah’s decision to seek to withdraw his services as a common legal representative (or to make himself unavailable for nomination as such) in the Kenyatta/Muthaura case. There seems to be a pressing controversy within the court (between the Judges, Office of Public Counsel for the Victims, Registry and the Common Representatives) about the extent of the role of common victims representatives. Has there been adequate consultation and thought given to the views of the victims themselves? Lets see how the trial chamber addresses the issue.
  4. Decision on defence request to change the place of the proceedings– The defence in the Kenyatta/Muthaura case wanted proceedings moved to either Arusha, Tz or to Kenya itself to minimise disruption to defendants and witnesses, promote judicial economy and generally minimise costs. This brief decision by the trial chamber simply tells them that they should file such an application for change of venue with the Presidency rather than the court. The rule governing this procedure is interesting, because it is not just the Kenya case trial chamber involved in the decision to move proceedings. First, the state itself must agree to host the ICC trial, then the judges in plenary must then vote by two-thirds to move the proceedings. This apparently means all the ICC judges, not just trial chamber V judges, will decide this matter if the defence pursues the change of venue.
  • An interesting side-note on PTSD: some organisations in the US have been campaigning to have it re-named ‘Post-combat stress injury’ to remove the stigma that soldiers (especially war veterans) attach to the term ‘disorder’. It is hoped that this will encourage more soldiers to seek treatment. At trial, it might be interesting to see how PTSD suffered by civilians in non-military conflicts may differ (if at all) to PTSD or Combat Stress Injuries suffered by soldiers and armed combatants.

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

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