Tag Archives: Delayed Disclosure

Recent Documents in the 2 ICC Kenya Cases 9 August 2013

The Trial Chamber decided to allow the Prosecutor further time to disclose translations of Audio-Visual material from Kalenjin to English. The Chamber noted that the OTP had a lack of qualified translators, though it felt that the Prosecutor should have anticipated this issue earlier. However, because the judges felt that there would be no prejudice to the defence, they allowed delayed disclosure, setting the final date for 16 July 2013.

Last year, the Sang defence had asked for an opportunity to give written submissions on the definition of an ‘organisational policy’ to commit an attack against a civilian population (one of the elements under Article 7 of the ICC Statute the Prosecutor must prove). The defence has now withdrawn that request– though they made it clear that they still considered the interpretation of ‘organisational policy’ to be an important matter for trial.

The Prosecutor agreed to provide the Sang defence with 5 victims’ application forms with lesser redactions. These are the forms that victims prepare in order to seek permission to participate in the ICC cases. The Sang defence requested these applications because the five victims could also be trial witnesses. The Prosecutor applied to the Trial Chamber to allow the lesser redactions, the Sang Defence supported this application, noting that the Common Legal Representative of the victims had consented to this application. The Sang defence however felt that the Prosecutor had not been diligent in her work as she only made the application several months after communication between the parties. But the Sang defence also admitted that without seeing the actual forms, it is difficult to point to any prejudice that has yet been suffered.

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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 5 May 2013

The Kenyatta Defence made further complaints about the Prosecutor’s disclosure practices. This time, OTP-11 is the subject of concern. OTP-11 is a key witness to the alleged 30 December 2007 Statehouse meeting which, according to the Prosecution, Kenyatta attended; this and other meetings are part of the case for a common plan to perpetrate crimes in Naivasha and Nakuru. The defence feels that the Prosecutor unjustifiably delayed disclosing screening transcripts about OTP-11. According to Kenyatta, these transcripts contain evidence that potentially undermines the Prosecutor’s case- such as collusion and fabrication of evidence by OTP-11 and OTP-12. The Kenyatta defence had previously accused OTP-11 and OTP-12 of participating in an extortion attempt against the accused. The submission concludes by repeating the request to the Trial chamber to either terminate the case, stay proceedings or return the case back to the Pre-Trial Chamber to review the confirmation decision.

Nearly a month ago, the Chief Justice received a threatening letter allegedly sent by a group calling itself Mungiki Veterans Group.

The Prosecutor passed this letter to the Registry and the Registry attempted to bring this document to the attention of the Court on the basis that it concerned the overall security situation in Kenya. The Trial Chamber refused, however, to accept this filing, noting that it was improper for the Registry to simply pass on something that was given to it by a party to the proceedings. In addition the Registry did not specify what action it wanted the court to take as a result of this document nor did it show how this filing was part of the discharge of the function of the Registrar. The Court left open the possibility that in the event that the matter of the letter to the CJ needs further action, the Registry can file an application to the Trial Chamber using the proper procedure.

The Victims and Witnesses Unit filed an amended witness familiarisation protocol to implement the Trial Chamber’s decision on contact between parties and their witnesses.

Recent Court Documents in the 2 ICC Kenya Cases 30 April 2013

The Trial Chamber granted leave to the Kenya government to make submissions on the cooperation that it has provided to the ICC. Earlier this month the Attorney General had filed an application for leave, complaining about the Prosecutor’s accusation that her investigations were hampered by a lack of cooperation from the Kenya government. The parties to the proceeding as well as the Legal Representative have 14 days (from 24 April) to respond to the GoK’s submissions.

The Legal Representative for Victims in the Ruto, Sang case has responded to the application by Ruto to waive his presence during much of his upcoming trial (owing to his ‘workload’ as Deputy President). In his response, Wilfred Nderitu argues that the accused’s presence is not a right that he can choose simply to waive. Furthermore, in other cases where the accused’s absence was accepted, this was strictly for short periods and due to unavoidable circumstances. Finally, he concludes by noting that having accused absent from their own trials may lead to participation lethargy among the victims and a feeling that ICC proceedings are merely symbolic.

The Kenyatta defence team complained about 4 documents that they felt the Prosecutor failed to disclose to them in a timely manner. The documents allegedly show further inconsistencies and contradictions in infamous OTP-4’s evidence. The defence team wanted to file additional submissions to the court in light of this recently disclosed information.

Kenyatta/Muthaura Status Conference

The Trial Chamber ordered a status conference in this case prior to the beginning of the trial. It was held on the morning of 14 February 2013 (Valentine’s Day is evidently not a court-sanctioned holiday). The Judges asked participants to give their observations prior to that date on what should be covered during the conference.

The Registry submitted observations in the same vein as the Ruto/Sang Conference discussed above. The Prosecutor also submitted brief observations reiterating her previous concerns about the accused potentially violating summons conditions by interfering with witnesses.

After receiving these observations, the court set out the following agenda for the conference:

  1. Practical modalities for the accused’s attendance at trial
  2. Delayed Prosecution disclosure and impact on the trial date
  3. Scheduling of the 2 Kenya trials.

On the day of the conference, the issue of delayed disclosure and its potential to hold up the trial came up. The Muthaura defence team was particularly vocal in protesting what they saw as the OTP’s tendency to dump evidence on them at ‘the last possible minute”. The word ‘fraud’ was hurled at the OTP (remember witness OTP-4?), with the Muthaura defence suggesting that the Prosecutor misled the Pre-Trial chamber. Judge Eboe-Osuji actually interposed to ‘suggest’ that the defence use a word other than ‘fraud’. All in all a fraught conference.

 

The Kenyatta defence stood up to criticise not just delayed disclosure but the process of redactions which according to them was unbearably onerous on the defence resources (as redactions are peeled away, counsel have to re-analyse each transcript and witness statement afresh). They also argued that these redactions make it difficult to assess the credibility of the sources of the evidence.

In the end both defence teams asked for a delay in the trial to investigate new evidence that the OTP is relying upon; so that the trial would not start in April. The court asked for written submissions that were filed on 20 and 25 of this month (more on them later). The judges then finished by informing the participants that they were awaiting the decision of the presidency on their request to have another chamber appointed so that each of the 2 Kenya cases is heard by a separate chamber.

Recent Court Documents in the 2 ICC Kenya Cases 19 January 2013

The Prosecutor in the Kenyatta/Muthaura case has made delayed disclosure of a number of witness transcript summaries for 5 witnesses. Subsequent to this disclosure, the Prosecutor handed a further 7 summaries of witness statements to the defence. In both instances, the court had permitted the Prosecutor to delay disclosure to ensure the material was properly redacted.

Late last year, the Muthaura’s Defence made an application to move the trials away from the Hague and closer to ‘the grassroots’ as Politicians like to say. I blogged about this earlier, and as expected, the Chamber is seeking views as to the feasibility of moving the trial either to Kenya or Tanzania. The judges have asked the Prosecutor, Registry, Kenyatta Defence and Legal Representative of the Victims for their views. There may, I believe, soon also be amicus curiae applications on this issue given its importance to Defence rights, costs of the Trial and security and safety of witnesses.

The Prosecutor in the Ruto/Sang case has submitted additional material to the Trial Chamber on the matter of delayed disclosure of one of their witnesses (P-0534). The Prosecutor hopes the Trial Chamber will consider this material in deciding the application for delayed disclosure. In the same case, the Prosecutor submitted an additional 91 items of evidence to the defence. The OTP then added 494 pieces on top of the 91, and 17 more pieces of evidence shortly thereafter.

The Prosecutor in the Ruto/Sang Case has responded to the defence request for leave to appeal against the Trial Chamber’s decision on the witness protocol. The substance of the response is that the defence arguments against the Trial Chamber’s decision are either mere disagreements with the Trial Chamber’s decision (as opposed to matters affecting the fairness of proceedings), abstract arguments or misinterpretations of the Chamber’s decision.

UPDATE 22 JANUARY 2013: Some of the key matters that the Court and Participants may need to take into account in determining the suitability of shifting the venue to East Africa are:

1) Cost of accommodation, security and transport (especially if Nairobi is in the running as one of the venues!) of the Judicial, Registry, and VWU Staff.

2) Cyber-security and reliability of telecommunications (especially if re-located witnesses must testify through video-link from abroad)

3) Any additional technical and staff support and infrastructure available from the EAC, the Arusha Based ICTR or even the less-than-friendly African Union (Addis venue, anyone?)

4) The potential for the identification of and threats to witnesses, victims or their families. Whether or not a threat is credible, even a perceived threat may discourage witnesses from testifying.

5) Disruptions and delays, if the trials move to Kenya, taking into account a new and vastly expanded government will be taking over shortly before the trials start.

6) Chances of trial proceedings being disrupted by acts of violence (unruly demonstrations, counter-demonstrations, terror attacks).

7) Speed with which negotiations with willing hosts can be concluded and an Agreement executed.

8) Funding logistics (dealing with local banks; ensuring secure and speedy movement of court funds)

These are just a few of the things that may come into play as the Court and the Participants deliberate.

Recent Court Documents in the 2 ICC Kenya Cases 06 January 2013

The Trial Chamber previously ruled that any observations Sureta Chana wished to present about future representation of the victims had to be made as through the channel of amicus curiae. The former common legal representative subsequently made a request to appear as amicus in the Ruto/Sang case.

The Prosecutor in the Ruto/Sang case made a second application to delay disclosure of several items of evidence to the defence, citing worries about the protection of witnesses and the need to complete redactions. In the meantime, it has disclosed a further 25 items of evidence to the Ruto/Sang defence.

The Prosecutor in the Ruto/Sang case has put forward the name of Dr. Elizabeth Kaiser as a PTSD expert. More information about her qualifications is available here, althoughher full CV is still confidential. Her public Linkedin profile is available here.

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

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