Tag Archives: Fraud

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.

Advertisements

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.

The Curious Case of Witness OTP-4

About a week ago, the Kenyatta defence team asked the Trial Chamber to refer the case back to the Pre-trial chamber that issued the confirmation decision. They claim that failure to do so will cause a significant miscarriage of justice. The application stems from the alleged revelation that a witness (OTP-4) whose statement was admitted into evidence at the confirmation stage of proceedings lied about parts of his testimony.

A separate application was filed along the same lines by the Muthaura defence team. They request that the following issues be referred to the Pre-Trial Chamber:

  1. alleged non-disclosure of potentially exculpatory evidence (OTP-4’s statements),
  2. the changes to the Prosecutor’s case post-confirmation

The defence teams go further than simply asking for re-consideration, they suggest that the Prosecutor misled the Pre-Trial Chamber as to OTP-4’s evidence and if the true scope of his evidence had been known, then the Chamber would not have confirmed the charges. They base this allegation on the fact that the relevant document(s) were in the hands of the Prosecutor nearly a year before the Confirmation Proceedings, yet were not fully disclosed to the defence until last year (after the Confirmation of Charges). This is consistent with the theme of the Defence that the OTP failed in its ethical obligations (Remember as well that the Defence asked for a list of OTP counsel who will appear at trial as well as an indication of their ‘good standing’ with national bar organisations).

Both the Kenyatta and Muthaura teams’ applications ask for the Trial Chamber to vacate the date of trial and refer the question of the entire Confirmation Decision back to the Pre-Trial chamber for reconsideration. Regardless of what decision the PTC makes, it will inevitably create more delay in a case that has now stretched (in the various stages) through 3 years.

The Muthaura application suggests a less extreme measure of striking out any new allegations that the OTP made (in removing OTP-4’s evidence) in the pre-trial brief and preventing the OTP from leading evidence on those allegations at trial.

Clearly a significant part of the defence argument rests on whether one reads the alleged contradictory/recanted/fraudulent testimony as a ‘preliminary issue’ under Article 64(4) to be re-considered by the Pre-Trial chamber, or whether it should be an issue weighed up during the evidentiary stage of the trial. Looking at past decisions by ICC judges (Lubanga Judgement and the Confirmation decision in the Kenya cases) it is clear that judges are reluctant to remove even weak evidence from their consideration, preferring instead to duly note its incredible or inconsistent nature and then weigh it up with the rest. This might be difficult for the Trial Chamber given that- according to the defence- the Prosecutor has removed this witness from her list of witnesses for trial. Since the witness is under protective measures and only in communication with the VPRS and OTP, it is unlikely (but possible) that he will ‘turn’ and testify for the defence at trial. So the Trial court may never get the chance to hear from OTP-4. The solution may be to take things back to the Pre-Trial Chamber as the defence suggests. More on this as it develops.

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

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

AfricLaw

Advancing the rule and role of law in Africa