Tag Archives: Francis Muthaura

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

The Defence in the Kenyatta case asked the court to compel the Prosecutor to give a thorough review of its pre-trial brief and re-submit a corrected version. The request also seeks disclosure of a compiled material allegation schedule.

The Kenyatta defence also replied to the Chamber request for additional submissions on the venue of the trial, it stated that it had no objections to the opening (or other material portion) of the trial being held in Tanzania or Kenya.

By contrast the Prosecutor argued against the change of venue. Her view was that since Francis Muthaura, who initially raised the matter was no longer a party to proceedings, and none of the current parties had sought a change of venue, the Trial Chamber could not do so on its own initiative. She also pointed out that the public perception of the court in Kenya was gravely hostile and the court would have trouble getting cooperation from the Government, while the Prosecutor would be impeded in her work. She told the Chamber that there was a risk of surveillance- especially electronic surveillance- of the OTP by Kenyan authorities. This risk, she argued, extended to the judges as well.

The Prosecutor also repeated her worries about witness intimidation and interference, both in Kenya and Tanzania.

The Registry while unopposed to sittings in Kenya or Tanzania, wanted them to be short- possibly limited only to opening statements and the testimony of an expert witness. This would limit the cost of the trial proceedings shuttling between The Hague and East Africa.

The Common Legal Representative felt that without a request from any of the parties, the Chamber could recommend to the Presidency a change of venue. In addition, over 90% of the victims he represents wanted the trials held at the Hague rather than Kenya or Tanzania.

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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.

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.

Recent Court Documents in the 2 ICC Kenya Cases April 29 2013

The court clarified the rules it had set for contact with witnesses- the Witness Preparation Decision and Witness Preparation Protocol- by stating that any contact between a party and its witness less than 24 hours before testimony had to be ‘appropriate in the circumstances’ and with ‘due regard to professional responsibility’. Substantive witness preparation should have been completed before that 24 hour period. Once testimony begins, the only contact between parties and their witnesses will be at the Court Room, unless otherwise authorised by the court. The Victims and Witness Unit will handle any welfare and logistics for witnesses.

Karim Khan, Francis Muthaura’s lead lawyer is now co-lead counsel for William Ruto. His colleagues in the re-shuffled team are David Hooper and Kioko Kilukumi. In some of the filings, including the one below, I notice that Khan is designated as ‘lead counsel’, which might cause some confusion as to who is in charge of the team. While having co-leaders in a team of lawyers is known to happen, it can also lead to lack of coordination: there’s a quote I recall (attributed to a prosecutor in the OJ Simpson trial) to the effect that ‘co-lead counsel usually means no lead counsel’.

In addition to asking the court for Ruto’s presence via video-link and asking the court to permit him not to be continually present at trial, William Ruto’s defence team now ask the Trial Chamber to allow Ruto to waive his right to be present at trial. Under this application, Ruto would then only need to appear for opening and closing arguments, at the request of the Court, at any hearing he ‘chooses to attend’ and for judgement.

Quick Updates on the Kenya cases

Lots has happened in the last week or so, I’ll give a brief summary.

We’ve received more clarity on the type of misconduct and specific allegations that the defence is making against the OTP’s lawyers (I remember wondering why Muthaura’s lawyers were so quick to hire a former OTP counsel to assist in the preparation of its defence; now I wonder no more). The defence teams filed recent documents detailing their accusations that the several members of the OTP team withheld crucial evidence. One defence team called it a ‘win at all costs’ attitude. Clearly in there Kenyatta/Muthaura case, there is a full-court press against the OTP: challenging its evidence, its case theory, its case preparation and the ethics of its lawyers.

The Trial Chamber held a status conference on 18 March. During the conference, the discussion was about the effect of the withdrawal of charges against Muthaura on the Kenyatta case. The Judges were interested to hear what the participants thought about the element of the common plan which must be proven for there to be indirect co-perpetration liability. In other words, if Kenyatta and Muthaura were charged as indirect co-perpetrators it means the OTP had to prove that each made essential contributions such that one or the other would have frustrated the common plan by failing to perform their essential part. Therefore, the defence argument is that if Muthaura’s essential contribution is unproven/non-existent, then it follows that the common plan theory must also fail and this fatally undermines the Kenyatta case (at least in relation to this mode of liability).

The Prosecutor challenges the ‘essential contribution’ test as well as whether the collapse of the case against one indirect co-perpetrator can directly affect the case against the others in such a significant way. She wants the focus to be Kenyatta’s contribution, not the absence of Muthaura’s contribution. It seems that Judge Wyngaert has her own reservations about the mode of liability called ‘indirect co-perpetration’ which she made clear in her separate opinion in the Ngudjolo case. However, she and the other judges offered the Prosecutor a potential get-out-of-jail card by asking whether they might consider trying Kenyatta as an indirect perpetrator (i.e. drop the need for common plan, joint control theory, etc. that comes with having a co-perpetrator).

Further written submissions will come and the Chamber will rule on what happens to the Kenyatta case.

 

In addition, the Trial Chamber has now officially accepted the dropping of the charges against Francis Muthaura

Finally, as if there were not enough developments this case, witness OTP-8 in the Ruto/Sang case apparently felt the pangs of a heavy conscience and decided to unburden it by revealing that testimony the witness gave against Mr. Ruto was untrue. Unlike the OTP-4 issue in Kenyatta/Muthaura which had been simmering since the confirmation proceedings (when the defence first publicly raised questions about OTP-4), one can’t help but see a correlation between OTP-8’s Damascus moment and the new political dispensation in Kenya. Perhaps the correlation is simply a coincidence. We shall see.

Muthaura Speaking of his Heartbreak

or check out this longer clip:

Kiraitu Murungi lost no time in grabbing a mile from the inch offered by the Prosecutor; he stated confidently that following the collapse of Muthaura’s case, the trials of Kenyatta and Ruto (who is facing a charges on a completely different transaction of crimes) would soon follow suit.

 

Also note that some of the media are wrongly calling it an ‘acquittal’.

Court Postpones Kenya Trials, Prosecutor Drops Charges

Subsequent to the Status Conferences last month and after hearing observations from the parties, the Trial Chamber postponed the Kenyatta/Muthaura case to 9 July 2013.

 

A week later, the Prosecutor decided the case against Muthaura was no longer worth pursuing in its current form. She has now dropped all charges against him, according to this press release.

 

 

She gave the following reasons for dropping the charges:

  • “…the fact that several people who may have provided important evidence regarding Mr Muthaura’s actions, have died, while others are too afraid to testify for the Prosecution.
  • the disappointing fact that the Government of Kenya failed to provide my Office with important evidence, and failed to facilitate our access to  critical witnesses who may have shed light on the Muthaura case.
  • the fact that we have decided to drop the key witness against Mr. Muthaura  after this witness recanted a crucial part of his evidence, and admitted to us that he had accepted bribes.”

 

This is unprecedented at the ICC, though witness tampering has happened in cases in other tribunals (such as the ICTY). Of course, the defence argument would be that had she done sufficient investigations, she would have clearly seen the weaknesses in this case. This does not directly affect the Kenyatta case which the OTP will continue. Also no word as to whether the Prosecutor would seek fresh evidence to bring new charges for confirmation; this is not an acquittal, so the Prosecutor can still investigate Muthaura if she still believes he had a role in the crimes alleged.

 

The Trial Chamber has also postponed the Ruto/Sang case to 28 May, giving the Defence just over a month more to get ready.

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

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