Tag Archives: Common Legal Representative

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.

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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.

The Rules of Engagement for the Ruto/Sang Trial

The Trial chamber asked the parties in the Ruto/Sang case to give submissions by July 3rd on the conduct of the upcoming trial. These submissions were on:-

  1. Intention to make an opening statement and any special requirements to facilitate this.
  2. The Prosecutor’s schedule of her first 10 witnesses.
  3. Defence submissions on the time required to cross-examine.
  4. Whether the Defence or Prosecutor objects to certification before trial that the accused read and understood the DCC. These parties will also need to indicate if they object to the charges being read out to the Defendant at the beginning of the trial.
  5. Whether the court should allow a motion of ‘no case to answer’ after the prosecutor finishes presenting her case (before the Defence begins it’s own case). Such a motion would request the court to dismiss one or more counts before the Defendants begin their case.
  6. Possible self-incrimination by Prosecution witnesses. (Several witnesses are alleged to have taken part in the crimes charged).
  7. In-court protective measures for any Prosecution witnesses
  8. The timing and order in which Parties will question witnesses
  9. The procedure for questioning (advance notice of introduction of new material and objections thereto)
  10. Procedure for admission of materials (exhibits) through witnesses.
  11. Other methods of admitting materials into court record.
  12. Matters specific to the Victims representative such as the order and timing of the Common Legal Representative’s questions to witnesses, manner in which CLR will request to question a witness.

The Prosecutor replied, expressing (among many other things) that she would be happy to follow procedures laid down in previous completed trials (the Lubanga trial and the Katanga trial). She expects to make a 90 minute opening statement, and will call her first ten witnesses in the following order: P087, P0452, P0185, P0464 (EXPERT WITNESS), P0326, P0189, P0438, P0376 and P0410.

The Prosecutor also noted that some of her witnesses (P0015, P0016, P0024, P0028, P0323, P0356, P0534) might give self-incriminating evidence and thus the court will need to address this should the issue arise during testimony.

The Ruto defence replied, noting that it was too early for it to give a list of its opening witness- in a sense the defence wants to see how the final Prosecution case shapes up before deciding whether and in what order its own witnesses will appear. The Defence also wants to make submissions on the Prosecutor’s full witness list because it believes certain witnesses may have ‘concocted’ their accounts and therefore, having them appear sequentially lessens the time they may have to confer or change their accounts based on any testimony that they may hear before each takes the stand.

The Ruto Defence also wanted to be allowed to submit a ‘no case’ to answer application at the end of the Prosecutor’s case. Such applications allow a court to dismiss one or more charges before the Defence begins its case. They are usually only successful if the Prosecutor’s case is so weak that no reasonable court could convict the accused. Even if such an application is successful, it is not the same as an acquittal; the Prosecutor could in theory charge the accused at a later date under the same charges. But in practice Prosecutors usually cut their losses and focus on the remaining charges.

With regard to the order of questioning, the Ruto Defence also wanted the Prosecutor and Common Legal Representative to finish asking questions before the defence begins its cross examination.

The Defence also wanted to be able to object to admission of any item of evidence from the point of notification up to the point of admission- this leeway, they argued, is necessary because of the amount of material they’re processing and the fact that defence investigations are still ongoing.

During cross-examination, the Ruto defence wanted parties to be able to confront the witness with any document already in evidence- they also want the principle that the Defence should have the final word in questioning a witness upheld.

Other issues dealt with in the Ruto submission include procedures for introducing evidence through witnesses, transcripts of audio-visual materials, introducing non-witness related evidence through the ‘bar table’, and how the CLR should request permission to question a witness.

The Sang defence informed the court that Joshua Sang will make an unsworn statement at the beginning of his trial. The unsworn statement is a right of the defence, but because the Prosecutor cannot cross-examine Sang on his statement (and he is obviously not under oath when giving the unsworn statement), it tends to carry lower probative value than if Sang himself takes the stand as a witness under oath during the trial.

The Sang defence also wanted some indication of the order of Prosecution witnesses- such as whether they will be linked according to crime, geographical area, expert/fact witnesses. They generally expected to use the same amount of time cross-examining as the Prosecutor will use in the examination-in-chief (where the Prosecutor puts forward her witnesses and asks them questions).

The Sang defence did not object to Sang certifying prior to trial that he has read and understood the charges against him. They were also fine with the counts section of the DCC (where the specific crimes alleged- Murder, Deportation/Forcible Transfer, Persecution- are set out) being read in open court.

Sang agreed with the Ruto defence that no case to answer applications should be allowed after the Prosecutor finishes her case.

The Common Legal Representative indicated to the Chambers that he will make an opening statement at the start of the trial that will last about 4 hours; he will also use audio-visual material. The CLR may also present some evidence on behalf of victims. Furthermore, the CLR asks that prior recorded testimony not be admitted unless the witness to whom it relates is either dead, cannot be found, or cannot be brought to court without considerable expense or delay.

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.

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.

Recent Court Documents in the 2 ICC Kenya Cases 09 February 2013

The Kenyatta/Muthaura defence teams have demanded that the Prosecutor produce a list of the lawyers who will be trying the case, and whether they belong to any national bar association and are in good standing with that bar. They also want a Prosecution code of ethics instituted by the Trial Chamber. The defence feels such a Code is important in order to regulate Prosecution investigations and dealings with witnesses, and encourage transparency in the trial proceedings. All Defence council appearing at the ICC must strictly adhere to the Code of Professional Conduct. This Code does not legally apply directly to the Prosecution.

The Prosecutor replied to the application by stating that neither a list of her lawyers nor information as to their ‘good standing’ before national bars would be helpful in ensuring ethical behaviour with respect to witnesses, since there is already a Witness Preparation protocol in place and avenues to monitor witness preparation as well as seek redress for violations of the protocol. She also questions whether a single trial chamber can institute a code of conduct for all  prosecuting lawyers in all cases before the ICC. The Prosecutor further points out that any misconduct by a prosecuting lawyer against the administration of justice in the case is adequately dealt with by sanctions under the Statute.

The VPRS filed its first periodic report on the Status of its activities, the Victims in the Kenya cases, and the activities of the Common Legal Representative. The VPRS states that it will be mapping victims, reviewing applications, training intermediaries and setting up a database of victims. During a November visit to Kenya, the VPRS officials travelled to Nakuru, Kakamega and Kisumu (this particular report is solely for the Kenyatta/Muthaura case). Some of the worries that victims expressed included whether only victims in this particular case can benefit from reparations, ensuring intermediaries are well trained, and ensuring the registration of genuine victims only.

In relation to the Sang/Ruto Case, the VPRS found similar issues; these particular victims met with the VPRS in Nakuru, Eldoret, Lugari, Turbo and Siaya. Victims were also concerned about tensions before the coming elections.

The Prosecutor in the Kenyatta/Muthaura case has applied to amend the Document Containing Charges (what we Kenyans call the Charge Sheet). I previously reported that the Trial Chamber ordered the Prosecutor to remove an allegation in the DCC that 6 people were shot dead in Naivasha. The prosecutor subsequently received evidence that shooting deaths did occur in the context of the attacks. She now wants to reinsert this allegation into the DCC without the need for additional hearings.

The Pre-Trial Chamber (single judge ruling) has asked for observations on the above request to amend. The rules require that the amendment request be addressed to the Pre-Trial Chamber rather than the Trial Chamber. One issue that concerns the Judge is whether, given that the OTP is supposed to have largely completed investigations by the Confirmations stage, it is appropriate for new evidence to be admitted and the DCC amended. The Chamber also wants clearer and fuller information and witness statements from the Prosecutor

Fergal Gaynor, the Common Legal Representative for Victims in the Kenyatta/Muthaura Case submitted his observations on the application to amend. Although not opposing the application, he argues that the victims he spoke to are worried about the delays in the case that may result from this amendment. 4 have already died, according to Gaynor, some from medical/psychological effects of the PEV. Therefore, the victims wish to see ‘justice in their lifetime’.

The Kenyatta/Muthaura defence teams also submitted their observations. They feel that there is no reason why the OTP could not collect this evidence prior to confirmation of charges- therefore Prosecutor is abusing the latitude to submit new evidence prior to trial. They also feel that the prolonged publicity of the case in Kenya has now tainted the witness pool, therefore the court should be careful admitting new witnesses. The defence teams close by complaining again about the failure of the OTP to diligently investigate and to clearly ‘solidify’ the case; instead adding new witnesses and new allegations. They worry that the time to trial is too short to investigate the new statements to be produced by the OTP.

Update 18 February 2013: The Prosecutor submitted her observations about the conduct of her investigations, in which she disagreed with the Pre-Trial chamber as to the scope of her obligations with respect to post-confirmation investigations. The Prosecutor believes that only questions for the Pre-Trial Chamber are the sufficiency of evidence to support the amendment and any undue prejudice it may cause the defence at this stage- not whether and to what her office continued investigations after the confirmation of charges.

Recent Court Documents from the ICC Kenya Cases 20 December 2012

Kituo Cha Sheria submitted it’s Amicus Curiae observations on victims’ participation in the trial proceedings (Ruto/Sang here, Kenyatta/Muthaura here). Kituo’s observations centred on the security of the Common Legal Representative, the need for effective lines of communication between the CLR in Kenya (not sure if he’ll be based in Nairobi or not) and the OPCV at the Hague, the need for adequate, cost-effective support for the CLR, including logistics, office space and funding Victims’ travel, the need for trust and credibility between the CLR and victims, judicial supervision of the Victims Representation System and ensuring adequate information reaches the victims about the new system of representation.

 

The registry completed its proposals for the victims participation system (Ruto/Sang here, Kenyatta/Muthaura here). This particular document deals mostly with concerns from the OPCV as to the staff allocated by the Registrar between the two cases.

 

The Trial Chamber in the Ruto/Sang case extended the deadline for the disclosure of certain witness evidence to the defence at the request of the prosecution. Subsequently the prosecution notified the trial chamber that it no longer intends to rely on the said witness citing ‘witness management issues’ and the doubts about the ‘ongoing willingness’ of the witness to testify.

 

The Prosecutor in the Ruto/Sang case filed a response to a defence request that the Trial Chamber compel the Prosecutor to state whether she still intended to rely on a number of witnesses from the Confirmation proceedings. The Prosecutor urges the Court not to compel disclosure of the list of witnesses earlier than 9 January 2013; pointing out that the list is still provisional and that there are security issues at play.

 

 

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

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