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.
The Prosecutor’s press conference at the conclusion of her visit was as carefully worded as her opening one. But it belied some of the hot moments of her visit. These included an unexpected apology she graciously made on behalf of her predecessor for his failure to meet with IDPs and the rather puzzling decision of the CJ to decline her request for a closed-door meeting.
Her final statement to the media echoes the one she made at the start of her visit. Again and again she returns to the themes of witnesses and victims and working jointly with Kenyans against impunity. I’m not sure her final statement even mentions the word ‘accused’ once!
The Prosecutor also pressed home the 9 January deadline for the final hand-over of evidence. She wants the state to deliver the various items of evidence her office has requested by end of November. This is because the prosecution has to review the material thoroughly before providing it to the defence per the agreed deadlines.
Lets hope there’s no ploy within the government to try and dump evidence on the Prosecutor’s office on 8 January or worse, to simply allow the deadline to pass with no reply as happened in the wrangling over the referral of the situation.
While the statute requires that member states comply with requests from the court for cooperation, it also seems to impose derivative duty that where a state is unable to cooperate for whatever reason, it must give reasons for this. Furthermore, in relation to other forms of cooperation (Article 93), such as provision of official records and documents, if there is a fundamental legal principle ‘of general application’ that prohibits the state from cooperating, then it is obliged to consult the court ASAP to see how to resolve the situation.
Under Article 93, a state cannot deny a request for assistance unless the evidence or document disclosure relates national security.
Today the ICC Prosecutor, Fatou Bensouda, was in Nairobi. She’ll be here for the next week, meeting with a mixed bag of people and groups, from judicial officers to security personnel; from president to pauper; from IDPs to
Reading her statement to the media this afternoon, one can sense the caution with which the court treads in these cases. Constant themes include ‘respect’ and ‘listening’. But hidden beneath this soft tone of humility were some sharp rebukes The statement mentions efforts to interfere with witnesses and evidence. There’s a pointed reference here to delays in the government processing requests for information.
The implication for me is that for all the courtesy, this is not a meet and greet trip. Rather I see it as an effort to sustain pressure on the Kenya government whose attitude to the court can at best be summed up as neutral. There is genuine worry at the court about the level of cooperation to be expected from the state as the cases gather momentum. Of course the government is careful to say all the right things in public.
Another pointed reference: “The ICC judicial process will also take its own course irrespective of the political choices that the people of Kenya make.” In case you missed it, that was telling the accused to expect to be at the Hague in April, whether or not they are in the next government.
Her full statement to the media is available here.