Tag Archives: document containing charges

Why The Court Held that Kenyatta’s Case Must Continue

The Trial Chamber came to a decision on the Kenyatta Defence’s Article 64 application.

The Kenyatta defence had filed this application seeking to have the case either terminated, ‘permanently stayed’ or referred back to the pre-trial chamber. This came on the back of disclosure to the defence of OTP-4’s controversial affidavit and the decision of the Prosecutor not to proceed with the charges against Muthaura.

The Court’s Analysis

The court determined that failure to disclose OTP-4’s affidavit showed deficiencies in the Prosecutor’s evidence-handling practices, but did not warrant the extreme solution of a stay nor did it require asking the PTC to re-open the confirmation decision as the Trial Court was competent to resolve the matter. The court also was not convinced that delayed disclosure made a fair trial impossible.

The Court also pointed out that although OTP-4’s affidavit should have been disclosed in good time, the defence argument that the entire confirmation was flawed and should be re-opened represented an attempt to make the Trial Chamber an appeal chamber against the PTC’s judgement. The judges were not prepared accept such an unprecedented role. They also felt that the defence had not shown how the affidavit impacted the confirmation proceedings, rather, the defence simply used the affidavit to criticised the PTC’s methods and analysis. Finally, the defence seemed to ‘overstate’ the impact of OTP’s affidavit (and OTP-11’s screening notes that were also disclosed after confirmation): they could not show that a reasonable PTC could have come to a different conclusion bearing in mind the other evidence before it.

The same went for the defence argument that the new material and witnesses disclosed after confirmation proceedings materially altered the Prosecution case such that it would not be possible to proceed to trial. The Judges felt that despite the new material, the Prosecutor had stayed within the ‘facts and circumstances’ stated in the Document Containing Charges (DCC); even if there were changes made to the Pre-Trial Brief, it was the DCC that formed the borderlines of the Prosecutor’s case. In addition, the new material could not justify sending the case back to the PTC as the new material arose when the matter was within the rightful jurisdiction of the Trial Chamber, therefore it was the body responsible for handling the issue.

The court, however, criticised the volume of new material that the Prosecution brought after confirmation, noting that the burden was on the Prosecutor to show that such witnesses and material could not reasonably have been procured before confirmation. In this case, however, the court was satisfied that the ‘challenges’ with regard to investigating in Kenya sufficiently explained the late disclosure of large amounts new evidence.

In relation to Prosecutorial ethics, the Court criticised the Prosecutor’s failure to disclose the affidavit to the defence, but did not find anything to show fraud or intentional non-disclosure as the Defence had argued. The court also felt that to issue a stay on the basis of Prosecutorial misconduct would be excessive; the judges restricted themselves to issuing a reprimand.

Flowing from it’s reasoning, the court decided that the appropriate remedies were to reprimand the Prosecution for its conduct and give the defence more time to prepare their case (the Defence subsequently asked for trial to begin in January 2014).

Judge Wyngaert, in her brief separate opinion, was caustic about  Prosecutorial behaviour. She felt that the prosecution made only generic explanations for its difficulties in investigations and did not show how the situation (particularly for witnesses) had changed post-confirmation- if indeed the situation had changed. Several times the judge described the Prosecutor’s office as ‘negligent’ and she was clear that the negligence violated defence rights to a fair trial. But crucially, she accepted the mitigating factors for the Prosecutor who was operating under ‘difficult circumstances’.

Judge Eboe-Osuji aligned himself with the rest of the court on the main issues but had a lot more to say on the issues of fraud, OTP-4, the PTC’s analysis of evidence and of Post-Confirmation investigations. He categorically refuted the defence allegation of bad faith and fraud on the part of the Prosecutor. This is arguably correct: not only is ‘fraud’ an allegation of criminality that carries a high level of proof, but the actions of the Prosecutor in remedying the disclosure failings of her office contradict such a finding. Indeed, though the defence did not see OTP-4’s affidavit till late, it had been disclosed in full to Judge Trendafilova during confirmation proceedings; the Prosecutor admits however that she should have drawn the judge’s attention to the contradiction between the affidavit and OTP-4’s previous statements on the 3 January 2008 meeting. Judge Eboe-Osuji also felt that public policy was against sending the case back to the PTC; this would cause further delay in proceedings and judicial inefficiency. The Judge also cautioned the defence against drawing too much from the PTC’s assessment of OTP-4’s credibility. He pointed out that the PTC has a very limited role in assessing the credibility of witnesses compared with the Trial Chamber. Therefore a court should be reluctant to ask the PTC to reopen confirmation proceedings on the basis of additional evidence casting doubt on the credibility of confirmation witnesses.

Where Judge Eboe-Osuji parted ways with the main decision was on the question of post-confirmation investigations. The judge felt that the reasoning of the majority would unreasonably restrict Prosecutors in future cases from pursuing such investigations, even when they would be in the interests of justice.

Judge Ozaki also agreed with the main decision, but felt that the test for issuing a stay and the test for remitting a matter to the PTC should be applied separately. To her, it seemed that the main decision had decided both issues together without fully analysing each. She further felt that there should never be a reason why a Trial Chamber would refer back to the Pre-Trial Chamber an issue about framing of the charges- an issue that she felt was solely within the competence of the Prosecutor. In other words, the Trial Chamber could not refer back something over which it had no power to begin with. Instead, she felt that in the event there is a problem with the charges, the Prosecutor should be invited to amend them and, failing this, the Trial Chamber could discontinue the trial on the basis that a violation of the right to fair trial had occurred.

Way forward

Does this judgement feed the anti-ICC position? I think not, but it won’t stop Kenyan politicians and the Executive from making hay from this. For example, the A-G has been vocal recently about the cooperation that Kenya has given the court. So the fact that the judges partly accepted the Prosecutor’s argument that investigating in Kenya has been a challenge suggests that the A-G’s cooperation argument may not be as strong as he portrays it. The court was also clear in separating criticisms of the choice of cases by the Prosecutor from criticism of her conduct of those cases. As Judge Eboe-Osuji explained, allegations of bad faith or egregious conduct by the Prosecutor should not cause the Trial Chamber to lose sight of the important role it is playing in bringing accountability for Post-Election Violence. The same advice should go to the opponents of the ICC.

Sadly, the AU has joined the bandwagon of criticising the ICC wholecloth without differentiating between poor Prosecutorial practice and the fitness of the ICC for its purpose of breaking down walls of impunity. Of course the conclusion that the Prosecutor may have been negligent in handling the Kenya cases won’t help matters- even if she reforms the internal functioning and evidence review in her office what guarantees are there that it had not happened in the past and will not happen again?

But what the court did not say was the very thing that Uhuruto’s political and diplomatic defenders have been arguing- that the Kenyatta case was too weak to ever go to trial. It is this telling omission that is probably motivating the accused and their associates to rejuvenate exhausted shuttle diplomacy for another lap around the globe.

To use a sailing metaphor: the fact that her sails had big holes in them does not mean that the Prosecutor’s ship was sailing in the wrong direction- only that the Prosecutor should probably have prepared better before leaving port. Only a full trial can determine whether her destination (conviction of the accused) is within reach according the evidence.

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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.

The Modified Charges in the Kenyatta/Muthaura Case

The Trial Chamber in Kenyatta/Muthaura case has issued a decision on the substantive content of the Modified Charges Section of the Document Containing Charges.

The court began by noting that the Confirmation decision is not the only authoritative statement of charges for the Trial. The Document Containing Charges (once harmonised with the Confirmation Decision) is sufficient.

Judge Eboe-Osuji also argued that, reading the Statute and the practice of other tribunals, there was little to suggest that the Confirmation Decision is the sole statement of charges at trial and that the DCC became irrelevant once charges were confirmed. Indeed, the judge pointed out that the very length of confirmation decisions (usually +150 pages) makes it impractical to read these documents to the defendant at the commencement of trial! The reading and explanation of charges is a procedural right of each defendant prior to their pleading guilty or not guilty. For this reason, the Judge preferred, at the trial stage, to use an accurate (and shorter!) Document Containing Charges.

Judge Wyngaert drew attention to the practice of the Prosecutor of including ‘background facts’ in the Document Containing Charges. The judge advocates a stricter approach whereby only facts directly material to the charges should appear in the DCC.

Some of the keynote changes that the Trial Chamber wants to see in the Modified Charges Section include:

  1. Allowing the Prosecutor to allege that the Defendants facilitated Mungiki meetings.
  2. Allowing the Prosecutor to refer to Muthaura’s alleged de jure authority over General Hussein Ali (the Pre-Trial chamber only made a finding as to Muthaura’s de facto authority)
  3. Allowing the Prosecutor to refer to allegations that Muthaura ordered the Police not to interfere with Mungiki activity in Nairobi.
  4. Allowing the Prosecutor to allege that mutilation to hide gunshot wounds occurred in Nakuru.
  5. Stating that the Prosecutor should refer to Kenyatta and Muthaura’s alleged links not only with Mungiki in general but Maina Njenga in particular. This includes an alleged agreement for Mungiki and  Maina Njenga to support PNU
  6. Allowing the Prosecutor to refer both to Mungiki and ‘Pro-PNU’ youth in describing some of the alleged perpetrators.
  7. Requiring the Prosecutor to remove references to six victims allegedly shot to death.

Update 17/01/2013: In regard to Judge Eboe-Osuji’s comment that the DCC tends to be shorter than Confirmation Decisions; I have to say, given that the latest DCC from the Prosecutor numbers over 50 pages, there may come a time when the DCC rivals the Confirmation Decision for length.

Recent Court Documents in the 2 Kenya Cases 26 December 2012

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.

Recent Court Documents in the 2 ICC Kenya Cases 22 December 2012

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.

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

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