The Trial Chamber in the Ruto/Sang case granted protective measures that the Prosecutor requested for her witnesses. These include voice distortion, pseudonyms and face distortion. These measures are to be put in place directly the witnesses arrive at The Hague.
The Prosecutor in the Ruto/Sang case asked the Appeals Chamber for permission to ‘clarify’ her appeal against the decision of the pre-trial chamber denying her permission to change the temporal scope of the charges. The Ruto and Sang defence teams asked the court to reject the request.
The Ruto and Sang defence teams had confidentially filed a request to have information on Prosecution intermediaries disclosed to William Ruto. Intermediaries are the people who facilitated the initial and subsequent contact between the OTP and potential ICC witnesses. Some are compensated for the expenses they run up while working for the ICC; others are granted protective measures. The Ruto defence said that it wanted information on the intermediaries in order to effectively challenge the credibility of Prosecution witnesses and prepare for cross-examination
The issue of intermediaries nearly derailed the Lubanga trial- the first successful ICC trial- when the Prosecutor declined to provide full information about intermediaries to the defence. The Lubanga defence had alleged that some OTP intermediaries coached young former child soldiers to give false testimony incriminating the accused. The Lubanga Trial Chamber felt that the Prosecutor had violated the integrity of proceedings and issued stays of proceedings. Although the trial subsequently proceeded, the bickering over intermediaries and disclosure brought relations between the Judges and the Prosecutor to a nadir (see this helpful summary of the Lubanga case).
The Ruto/Sang Trial Chamber has now ruled on the issue of intermediaries. It ordered the Prosecutor to disclose to the defence teams a list of intermediaries who contacted Prosecution witnesses. The full identities of the intermediaries will not immediately be released; they will be referred to by pseudonyms. This, in addition to the high level of protection already given to OTP witnesses again highlights the concerns in this case for the security of those involved.
The defence for Uhuru Kenyatta applied to the Trial Chamber to compel the Prosecutor to lift redactions on the evidence that she had disclosed. This included redactions to witness transcripts, the pre-trial brief, the list of evidence and the list of witnesses. The defence also asked the court not to set a trial date until the Prosecutor complied.
The Government of Kenya weighed in further with respect to its cooperation obligations: the A-G accused the Prosecutor of ‘paranoia’ when she claimed that her staff had been obstructed in their work in Kenya. With regard to the court injunction preventing the OTP from interviewing Kenyan security officials, the A-G noted that ‘the matter had been scheduled to be heard in court on 24 May 2013 but the matter did not proceed as scheduled’. Furthermore, the A-G argued that the reason some of the evidence handed to the OTP was incomplete was due to ‘filing problems’ caused by missing files in the Judiciary. It’s tough to read some of these stated reasons with a straight face, because ‘the matter could not proceed’ and ‘the file is missing’ are outworn slogans used day in, day out in Kenyan courts to excuse paralysis. Such phrases would have been music to the ears of the Adjournment Lawyer in R K Narayan’s classic, The Man-Eater of Malgudi. This fictional attorney was sought after:
‘… for his ability to prolong a case beyond the wildest dream of a litigant.’
Let’s see what the Trial Chamber makes of these reasons.
The Prosecutor in the Ruto/Sang case has asked the Trial Chamber for permission to make redactions in the evidence from witness P-0015. The Prosecutor later made a similar application in relation to witness P-0016. In addition, 35 pieces of evidence were disclosed to the defence on 3/01/2013.
The Ruto/Sang Defence indicates that it has no problem with the Prosecution’s request for an extension in the page limit for the pre-trial brief (from 20-75 pages). The Trial Chamber soon after granted the Prosecution request.
The Kenyatta/Muthaura defence also did not object to the Prosecutor’s application for an extension of the page limit in the pre-trial brief. The Trial Chamber similarly granted the request.
The Prosecutor in the Kenyatta/Muthaura case has disclosed 34 pieces of evidence to the defence, including draft transcripts of witness interviews.
In this New Year update, the Prosecutor in the Ruto/Sang case renewed her application to redact the names of investigators from the evidence being disclosed to the defence.
The defence in the Ruto/Sang case has sought to explain why it refused to accept the Prosecution offer of experts for joint instruction. The worry for them is that Mr. Maupeu is francophone (which will cause difficulty for the defendants and their counsel who don’t speak French and will require translation). They also worry because the expertise of Mr. Maupeu seems to be in the Gikuyu ethnic group more than the Kalenjin ethnic group. They also question whether it’s practical for the expert to simultaneously testify in Kenyatta/Muthaura as well as Ruto/Sang. As to the rest of the experts, the defence was less unwelcoming, only asking for further information (and the identification of the relevant PTSD expert) prior to the commencement of trial.
The Prosecutor has disclosed an additional 175 pieces of evidence to the Ruto/Sang defence.
The Sang defence has objected to the Modified Charges Document filed by the Prosecutor. The Ruto defence has stated that it supports the objections of the Sang defence team.
The Sang/Ruto defence teams have asked the court to compel the Prosecutor to specify which witness it has recently decided not to call.
The Prosecutor in the Ruto/Sang case has submitted a modified Charges Section to its Document Containing Charges.
The Prosecutor in the Ruto/Sang case has sought to have redactions of the names of Prosecution Investigators included any future documents her office submits.
According to the Prosecutor, another 61 items of evidence have been disclosed to the Ruto/Sang Defence.
Similar to the Kenyatta/Muthaura case, the Prosecutor in the Ruto/Sang case has filed a report on joint instruction of experts. However, unlike in that case, there seems to have been no agreement with the Ruto/Sang defence as to any of the experts. The experts to be used were a satellite imagery expert, a Socio-Political background expert and a Post-Traumatic Stress Disorder expert. The prosecution indicates that it has not yet identified a suitable PTSD expert. Anyone interested in the background/qualifications of the proposed experts should read the full report here.
The Prosecutor in the Kenyatta/Muthaura case submitted a modified Charges section in their Document Containing Charges (DCC). This is in response to an earlier ruling by the Trial Chamber requiring the Prosecutor to restructure and clarify the Charges section. You can read the modified charges here.
The Prosecutor, in her second report on joint instruction of experts (see this earlier blog post on the Ruto/Sang case), informs the Trial Chamber that she proposed the names of two experts for consideration by the Kenyatta/Muthaura defence teams. One is Lars Bromley, a satellite imagery expert;
the other is Herve Maupeu an expert in the Socio-Political Background (I couldn’t find a photo!).
Many might be puzzled as to what exactly constitutes a Social and Political background expert. Some clues can be gleaned from the Prosecutor’s proposed instructions: the expert is supposed to answer questions such as What was PNU at the time of the 2007 elections? or Did ODM draw support from any particular segment of the population? If so, which ones and why?Other questions delve into the history and pathology of political violence, criminal gangs and non-state militia in Kenya. In total there are 12 questions. Back to the report: the thrust of this submission is that the Prosecutor wants to proceed to instruct Mr. Maupeu as a Prosecution expert because there was a failure to agree with the defence teams on joint instruction. With regards to the other experts, discussions are still ongoing.
The Muthaura Defence team has made an application to the Presidency of the ICC (made up of the President of the Court and his two Vice-presidents) to change the venue of the trial to either Kenya or Tanzania. If they are successful, the Presidency is will then seek the views of the Trial Chamber trying the case and the relevant countries which might host the trial. For practical purposes, the other defence teams (including the Ruto/Sang) defence would have to agree. If they don’t, it’s tough to envisage Trial Chamber V sitting in both the Netherlands and contemporaneously in an East African State. Unless they split the trials, all the players would probably need to assent to a shift in the trial venue.
The Trial Chamber has dismissed the Prosecutor’s fifth application for authorisation of non-standard redactions in the Kenyatta/Muthaura case.
On 4 December 2012, The Prosecutor in the Kenyatta/Muthaura case communicated further incriminatory evidence to the Chamber and the relevant defence teams.
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.