Tag Archives: Joshua Sang

The Kalenjin on Trial?

Although the opening statements of the parties proceeded as per the script that’s been written over the past year, one comment by Joshua Sang’s lawyer caught a number of us off-guard: though it should not have come as much of a surprise. At one point, Mr. Katwa-Kigen accused the prosecutor of placing the Kalenjin community- it’s culture and traditions- on trial. Though Katwa-Kigen is Joshua Sang’s lawyer, his utterance cuts across the cases. It creates the impression that the destiny of an ethnic community is at stake at the ICC; that the conviction of a Kalenjin defendant is a conviction of the Kalenjin Community.

The Prosecution was pretty prompt in protesting this characterisation of their case, but the comment was also unfortunate because it plays into the hands of those who believe that the ‘electoral truce’ between the Kikuyu and Kalenjin communities (which helped bring about the most peaceful poll in over two decades) hinges upon the outcome of the 2 trials.

Let’s hope all the parties will focus on defending the clients they’re paid to defend and not try to rope in millions of Kenyans as co-defendants.

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The Opening Salvos of the Ruto-Sang Case

Today marked the opening day of the Ruto/Sang case. Each side will make opening statements over the next two days. In fact, this particular case has not had prolonged statements (compared to some international criminal cases in the past) and we could be finished by the end of tomorrow morning. Opening statements are customary at international tribunals, but what in fact goes into good opening lines?

There are no hard and fast rules and judges rarely intervene unless a party really steps over the line and starts giving evidence on behalf of a witness, or grossly distorts the facts alleged. Courts also want to avoid controversial tactics like the late Jacques Verges’ ‘rupture’ technique that sought to put the trial itself on trial.

Since not all parties have finished giving their statements, I will focus solely on what a good Prosecution statement should (in theory) contain:

  1. An opening is more than just a list of the witnesses and the evidence. It is a persuasive story of the Prosecutor’s case theory: What happened? Why did it happen? Why is the Defendant responsible? How can we be sure? Why does the Prosecutor’s version of events make more sense the Defendant’s? What verdict does the Prosecutor request from the court?
  2. The Prosecutor will set out the propositions she needs to prove and explain how she will go about proving them. She will use the opening statement to tell the judges how she expects to win the case.
  3. While the Prosecutor may preview evidence she will present (often through audio-visual material), as a general rule- more honoured in its breach than its observance- the opening statement should not interpret or draw conclusions from this evidence before the court has actually seen or heard it. The Prosecutor should not be telling the judges what weight to give each piece of evidence nor should she make conclusions on the credibility of witnesses. Given however, that witness credibility is a key issue in this case, it’s not surprising that some comment was made on the issue of witnesses changing their stories.
  4. The opening statement must stick closely to the facts alleged in the Document Containing Charges. In addition, every fact that the Prosecutor alleges in her opening statement and which has not already been admitted by the defence needs to be backed up by a witness or some piece of evidence.
  5. Sometimes both Prosecutor and Defendant will try to speak to history with wonderful flights of oratory. These should be kept to a minimum, because seasoned judges won’t pay much attention to the arrival and departure of these flights when they reach judgement later on. The golden rule: make your time count, so stick to the case at hand.

In summary, the opening statement is a preview and road map that each side presents to the judges to guide them through the presentation of the case. The Prosecutor has a slight disadvantage in that she will rarely have a right to reply to the Defendant’s opening statement whereas the Defence will have an opportunity to respond in their own opening to what they hear from the Prosecutor. If, however, the opening statement is well done, the logic of the case shines through. This eases the way into the next stage of trial where the Prosecutor will actually do what the opening statement promised they would do: present the evidence.

Further Developments in the Ruto/Sang Case

The Prosecutor applied for leave to appeal the Pre-Trial Chamber’s decision rejecting her application to amend the temporal scope of charges. The Prosecutor wanted factual allegations beginning on 30 December 2007 to be included in the charges. Both the Sang and Ruto Defence teams (here and here) object to the application for leave arguing that there is no appealable issue raised, the issues raised would not affect the fairness or expeditiousness of proceedings and a decision by the Appeals Chamber would not advance proceedings.

The Plenary of Judges of the ICC rejected the joint Ruto-Sang Defence application to change court sittings to East Africa (either Kenya or Tanzania). 9 judges voted against changing the place of sitting to Kenya, 5 voted for this option. 9 judges voted against changing to Tanzania, 4 voted against and 1 abstained.

Though none of the majority judges objected to the principle of the request, many were swayed by security concerns for victims and witnesses, by the potential for demonstrations and disruption and some were convinced the cost of holding parts of the proceedings in East Africa were not justifiable. In addition, according to dissenting Judge Eboe-Osuji, some may have been swayed by a late submission by the OTP on the eve of the Plenary decision that seemed to change the OTP position from being in favour of a trial close to the site of alleged crimes to one in which the Prosecutor felt it was not in the ‘interests of justice’ for the trial to be held in Kenya or Tanzania. The judge thought this late submission an ‘ambush’ by the Prosecutor, which gave the Defence no chance to reply prior to the Plenary Decision.

An open letter to the President of the ICC, written by Gladwell Otieno and arguing against holding the cases in Kenya, was the target of scathing words from Judge Eboe-Osuji. The judge noted that Otieno was a petitioner against William Ruto and Uhuru Kenyatta’s election as Deputy President and President respectively.

Here is the Supreme Court Judgement upholding that election as well as the People’s Court website run by, among others, Gladwell Otieno’s organisation. The People’s Court is an attempt to keep public debate about the March 4 Election litigation alive now that the election of Kenyatta and Ruto has been upheld.

Judge Eboe-Osuji felt that whereas Otieno’s letter had allegedly stated concerns about the politicisation of the cases if brought to East Africa, she, in fact, was contributing to the perception of politicisation by her direct involvement in this matter given her prior interest in seeking to nullify the political victory of the accused. It did not help, according to the Judge, that the Prosecutor appeared to have altered her views on the change of venue in a manner that coincided with Gladwell Otieno’s letter.

A change of venue application is also pending in the Kenyatta case; its prospects don’t look promising in light of the reasons the judges gave for rejecting the Ruto-Sang application.

The Trial Chamber rejected the parties’ suggestions for an ‘on-off’ court sitting schedule. However, the judges kept open the door that they may vary this schedule once the Kenyatta case starts.

The Trial Chamber also decided on the disclosure of screening notes of 12 Prosecution witnesses who will not be called at trial. The Court ordered disclosure of the notes to the Ruto Defence in full.

Recent Court Documents in the 2 ICC Kenya Cases 9 September 2013

The prosecutor filed additional submissions on the conduct of the trial. She stated that she would raise any objections about questioning witnesses on a case by case basis.

She also asked to be permitted, after the Defence case, to rebut, explain or counteract any evidence given by the Defence which she could not have reasonably anticipated and which relates to a ‘significant issue’ in the case. She accepted that if there is such a rebuttal, the Defence should similarly be permitted to rebut the rebuttal.

The Prosecutor also wanted the Court to allow the party challenging a witness (the opposing party) to put their case to the witness. For example if the opposing party thinks the witness is untruthful, it should be allowed to confront the witness with the allegation to save time on having to call back the witness later to answer questions that could have been asked at the earlier hearing.

The Prosecutor also informed the Trial Chamber that if a witness turns hostile (becomes uncooperative to the party calling him or her), or changes their tune to favour the opposing party, the calling party should be allowed to challenge the hostile witness with his or her prior recorded statements. This is potentially a key battleground in this trial given the various media reports of witnesses abruptly changing or withdrawing their support from the OTP (and ICC in general).

The Prosecutor also reminded the court that it has requested notice that the form of individual criminal responsibility alleged against William Ruto may change during the trial.

The Sang Defence took issue with the 4th Report of the VPRS on the status of participating victims. The Defence feels the report is deficient because it does not mention the 93 victims who allegedly withdrew from the ICC proceedings [link]. They feel that the court should want to be clear on exactly how many victims are still participating. Furthermore, the Common Legal Representative is restrained to ask only questions at trial that touch on the interests of the victims, it is in the defence’s interest to know which pool of victims the CLR is representing. Sang’s defence want an accurate tally of the remaining participating victims and for the VPRS to give a report on the authenticity of the claim of 93 victims withdrawing.

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.

The Prosecutor’s Appeal Against Ruto’s Absence

The Prosecutor asked the Appeals Chamber to reverse the Trial Chamber’s decision to allow William Ruto to miss much of his trial’s proceedings. In the appeal , she vigorously disagreed with the Decision, arguing that the Trial Chamber ignored clear and binding law in the Rome Statute and substituting this with its own discretion to decide upon the presence or absence of an accused should.            

According to the Prosecutor, the words ‘the accused shall be present at during the trial’ were not ambiguous and should have been given their ordinary meaning. The only exception to this ‘presence’ rule was if the accused was disruptive during the trial and only for such a time as the disruptive behaviour continues. The Prosecutor noted that Ruto could have waived his right to be present at the confirmation stage, but once trial starts, he must be at the ICC Courtroom. Reading the Statute at a whole and sifting through its drafting history, the Prosecutor concluded that the intention of the drafters was that the Accused must be present at trial. The fact that presence at trial was both a right and a duty under the statute did not give the Trial Chamber discretion to waive the duty where the Statute was clear that the accused had to be present.

 

The Prosecutor also disagreed with the Trial Chamber’s claim that the duty to be present attached solely to the accused and not Trial Chamber, allowing the judges discretion over ensuring the accused’s presence. The presence of the accused, according to the OTP, was a prerequisite of trial, and thus bound all trial participants to ensure this presence, even if the accused bore the brunt of the duty.

 

Fundamentally, the Prosecutor was unhappy with what she saw as an attempt by a trial chamber to impose its policy preferences over the intentions of the State Parties who crafted and ratified the Rome Statute. This is more so because the Trial Chamber had used sources of law outside of the Rome Statute framework, when the answers, according to the Prosecutor, were clearly to be found in the drafting history, a contextual reading of Article 63 and the case law of the court.

 

Finally, the Prosecutor challenged the ‘exceptional circumstances’ test that the Trial Chamber used to justify excusing Ruto from attending much of his trial, arguing that this was not supported by the law. She agreed with the dissenting trial judge, Olga Carbuccia, that such a test violated the principle that all accused should receive equal treatment; under the test, Ruto’s functions as a Vice President got him a broad waiver not available to accused like Joshua Sang. She also argued that such a test would open the floodgates for litigants to try to justify their absence from trial on the basis of their ‘exceptional circumstances’ e.g. a minister who was the only one constitutionally able to perform the duties of her office.

 

Because the trial is due to begin shortly, the Prosecutor asked the Appeals Chamber to suspend the Trial Chamber’s decision until the appeal is decided. This will ensure that the trial does not run into problems if Ruto has been absent from proceedings, only to be told that his presence was a prerequisite for a fair trial. This could lead to the trial having to re-start with Ruto’s full presence. As such, the Prosecutor feels it would be better for Ruto to be continuously present in court until the Appellate judges decide whether or not his absence from long periods is lawful.

The Rules of Engagement for the Ruto/Sang Trial

The Trial chamber asked the parties in the Ruto/Sang case to give submissions by July 3rd on the conduct of the upcoming trial. These submissions were on:-

  1. Intention to make an opening statement and any special requirements to facilitate this.
  2. The Prosecutor’s schedule of her first 10 witnesses.
  3. Defence submissions on the time required to cross-examine.
  4. Whether the Defence or Prosecutor objects to certification before trial that the accused read and understood the DCC. These parties will also need to indicate if they object to the charges being read out to the Defendant at the beginning of the trial.
  5. Whether the court should allow a motion of ‘no case to answer’ after the prosecutor finishes presenting her case (before the Defence begins it’s own case). Such a motion would request the court to dismiss one or more counts before the Defendants begin their case.
  6. Possible self-incrimination by Prosecution witnesses. (Several witnesses are alleged to have taken part in the crimes charged).
  7. In-court protective measures for any Prosecution witnesses
  8. The timing and order in which Parties will question witnesses
  9. The procedure for questioning (advance notice of introduction of new material and objections thereto)
  10. Procedure for admission of materials (exhibits) through witnesses.
  11. Other methods of admitting materials into court record.
  12. Matters specific to the Victims representative such as the order and timing of the Common Legal Representative’s questions to witnesses, manner in which CLR will request to question a witness.

The Prosecutor replied, expressing (among many other things) that she would be happy to follow procedures laid down in previous completed trials (the Lubanga trial and the Katanga trial). She expects to make a 90 minute opening statement, and will call her first ten witnesses in the following order: P087, P0452, P0185, P0464 (EXPERT WITNESS), P0326, P0189, P0438, P0376 and P0410.

The Prosecutor also noted that some of her witnesses (P0015, P0016, P0024, P0028, P0323, P0356, P0534) might give self-incriminating evidence and thus the court will need to address this should the issue arise during testimony.

The Ruto defence replied, noting that it was too early for it to give a list of its opening witness- in a sense the defence wants to see how the final Prosecution case shapes up before deciding whether and in what order its own witnesses will appear. The Defence also wants to make submissions on the Prosecutor’s full witness list because it believes certain witnesses may have ‘concocted’ their accounts and therefore, having them appear sequentially lessens the time they may have to confer or change their accounts based on any testimony that they may hear before each takes the stand.

The Ruto Defence also wanted to be allowed to submit a ‘no case’ to answer application at the end of the Prosecutor’s case. Such applications allow a court to dismiss one or more charges before the Defence begins its case. They are usually only successful if the Prosecutor’s case is so weak that no reasonable court could convict the accused. Even if such an application is successful, it is not the same as an acquittal; the Prosecutor could in theory charge the accused at a later date under the same charges. But in practice Prosecutors usually cut their losses and focus on the remaining charges.

With regard to the order of questioning, the Ruto Defence also wanted the Prosecutor and Common Legal Representative to finish asking questions before the defence begins its cross examination.

The Defence also wanted to be able to object to admission of any item of evidence from the point of notification up to the point of admission- this leeway, they argued, is necessary because of the amount of material they’re processing and the fact that defence investigations are still ongoing.

During cross-examination, the Ruto defence wanted parties to be able to confront the witness with any document already in evidence- they also want the principle that the Defence should have the final word in questioning a witness upheld.

Other issues dealt with in the Ruto submission include procedures for introducing evidence through witnesses, transcripts of audio-visual materials, introducing non-witness related evidence through the ‘bar table’, and how the CLR should request permission to question a witness.

The Sang defence informed the court that Joshua Sang will make an unsworn statement at the beginning of his trial. The unsworn statement is a right of the defence, but because the Prosecutor cannot cross-examine Sang on his statement (and he is obviously not under oath when giving the unsworn statement), it tends to carry lower probative value than if Sang himself takes the stand as a witness under oath during the trial.

The Sang defence also wanted some indication of the order of Prosecution witnesses- such as whether they will be linked according to crime, geographical area, expert/fact witnesses. They generally expected to use the same amount of time cross-examining as the Prosecutor will use in the examination-in-chief (where the Prosecutor puts forward her witnesses and asks them questions).

The Sang defence did not object to Sang certifying prior to trial that he has read and understood the charges against him. They were also fine with the counts section of the DCC (where the specific crimes alleged- Murder, Deportation/Forcible Transfer, Persecution- are set out) being read in open court.

Sang agreed with the Ruto defence that no case to answer applications should be allowed after the Prosecutor finishes her case.

The Common Legal Representative indicated to the Chambers that he will make an opening statement at the start of the trial that will last about 4 hours; he will also use audio-visual material. The CLR may also present some evidence on behalf of victims. Furthermore, the CLR asks that prior recorded testimony not be admitted unless the witness to whom it relates is either dead, cannot be found, or cannot be brought to court without considerable expense or delay.

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

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