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.
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.