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 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.
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.
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)