Tag Archives: Joint Instruction of Experts

Recent Court Documents in the 2 ICC Kenya Cases 09 September 2013

Trial Chamber V(A) ruled on Joshua Sang’s application to exclude expert evidence from Herve Mapeu. The application had been made confidentially, but has now been re-classified as a public document. Mr. Mapeu is a Prosecution witness due to testify at trial on the socio-political context of the Post-Election Violence. The Prosecutor had submitted the expert report prepared by Mr. Mapeu and the Sang Defence objected to its admission in evidence.

The Court felt that the socio-political situation around the 2007/08 period was sufficiently complex that it needed to here expert testimony to assist it in understanding this history. This was irrespective of whether other (non-expert) witnesses would testify on similar matters. The judges also agreed that the subject matter of the expert report did fall within the remit of a socio-political expert.

The Court held back from addressing Mr. Mapeu’s qualifications as an expert, stating that this was a matter to be addressed during trial after Mr. Mapeu has been examined and cross-examined by the parties. For the same reason, the Judges declined to make a ruling on other potential defence challenges to the report’s admissibility (e.g. whether it has probative value and the probative value outweighs any prejudice it may cause) until the report is actually submitted at trial.

The same trial chamber also held a status conference on 19 August to discuss the length of the Prosecution’s case, the time take to question witnesses and other procedural matters.

Update: Instruction of Experts in the 2 Cases

The Prosecutor in the Kenyatta/Muthaura case submitted the 3rd report on expert witnesses. She noted that the two sides were unable to agree on Lars Bromley (CV here) as a joint expert on satellite imagery so he will be called as a Prosecution expert.  In addition, the Prosecutor is discussing with the defence the possibility of a joint expert- Dr. Peter Sommer- to examine email correspondence of various witnesses. The Prosecutor and Defence still need to agree on an expert to examine other electronic correspondence (such as Call Data from mobile phones and SMS messages). The Prosecutor was unable to find anyone willing to testify in this case as a Sexual and Gender-Based Violence expert.

With regard to the proposed experts in the Ruto/Sang case, the Defence is still concerned about the potential language barrier in regard to the Prosecutor’s suggested Socio-Political expert Herve Maupeu. The proposed expert wants to testify in French; the defence teams do not contain French speakers. This may undermine their ability to adequately follow the expert’s testimony (even if there is translation) as well as to effectively examine him. It may also make it difficult to investigate his background if much of his writings and prior works are also in French.

Recent Court Documents from the 2 ICC Kenya Cases 12 November 2012

  1. Decisions on Supplementary Protocol Concerning Handling of Confidential Information concerning Victims (Ruto/Sang and Kenyatta/Muthaura)- this decision explains to the parties (Prosecution and Defence in the Ruto/Sang case) the process of contacting victims while respecting their confidentiality. The common legal representative of the victims is the key channel for any contact.
  2. Decision on Updated Report on the Joint Instruction of Experts– Trial Chamber V directs the parties (Ruto/Sang) to continue seeking agreement on the use of joint expert reports at the trial. Use of joint experts helps prevent expensive and time-consuming ‘duels’ of experts between the prosecution and defence at trial. The parties in this case are currently negotiating joint experts on Post Traumatic Stress Disorder (PTSD), Social and Political Background of the case and Satellite Imagery.
  3. Request to present the views and concerns of the victims on their legal representation at the trial phase– while I won’t comment on the actual application by Representative Sureta Chana (Ruto/Sang case), I note that it comes hot on the heels of Morris Anyah’s decision to seek to withdraw his services as a common legal representative (or to make himself unavailable for nomination as such) in the Kenyatta/Muthaura case. There seems to be a pressing controversy within the court (between the Judges, Office of Public Counsel for the Victims, Registry and the Common Representatives) about the extent of the role of common victims representatives. Has there been adequate consultation and thought given to the views of the victims themselves? Lets see how the trial chamber addresses the issue.
  4. Decision on defence request to change the place of the proceedings– The defence in the Kenyatta/Muthaura case wanted proceedings moved to either Arusha, Tz or to Kenya itself to minimise disruption to defendants and witnesses, promote judicial economy and generally minimise costs. This brief decision by the trial chamber simply tells them that they should file such an application for change of venue with the Presidency rather than the court. The rule governing this procedure is interesting, because it is not just the Kenya case trial chamber involved in the decision to move proceedings. First, the state itself must agree to host the ICC trial, then the judges in plenary must then vote by two-thirds to move the proceedings. This apparently means all the ICC judges, not just trial chamber V judges, will decide this matter if the defence pursues the change of venue.
  • An interesting side-note on PTSD: some organisations in the US have been campaigning to have it re-named ‘Post-combat stress injury’ to remove the stigma that soldiers (especially war veterans) attach to the term ‘disorder’. It is hoped that this will encourage more soldiers to seek treatment. At trial, it might be interesting to see how PTSD suffered by civilians in non-military conflicts may differ (if at all) to PTSD or Combat Stress Injuries suffered by soldiers and armed combatants.

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

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