Tag Archives: Leave to Appeal

Recent Court Documents in the 2 ICC Kenya Cases 29 October 2013

The first private sessions of the Ruto/Sang trial have been held with Witness 536. The court wants to preserve the principle of public trials so  it asked the calling party (the side calling the witness) to produce a redacted transcript of any closed hearing within 24 hours of receiving the confidential transcript. The other parties have a chance to respond to this redacted transcript within 2 days. Thereafter it will be sent to the registry and hopefully released to the public.

The same Trial Chamber also rejected the Ruto Defence request to appeal against the decision allowing the Prosecutor to add two witnesses to her case.

The Appeals Chamber (Judge Usacka partly dissenting) rejected Nigeria and Ethiopia’s request to give observations on the appeal against the decision on Ruto’s absence from court.

Pursuant to an order by the Appeals Chamber, the Prosecutor responded to the defence request to vary the decision on suspensive effect. The Prosecutor asked the Judges of Appeal not to change their decision on suspensive effect. She argued that as an accused answering summons, Ruto cannot expect life to ‘continue as normal’ even if he wants to be in Kenya to lend a hand on the matter of the Westgate massacre.

The VPRS gave its 5th report on the status of victims in the Ruto/Sang case.

The Ruto Defence asked the trial chamber not to allow the Prosecutor to re-characterise the mode of liability with which she charged Ruto. The prosecutor wants to charge Ruto with forms of secondary (accessory) liability.

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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.

The Appeal Against the Decision to Allow William Ruto to be absent from Court Proceedings

The Prosecutor in the Ruto/Sang case sought to appeal the decision allowing William Ruto’s absence from parts of his trial. She applied to the Trial Chamber for leave to appeal because she felt that the Chamber made the following errors:

  1. The scope of the Defendant’s duty to be present at trial and whether a Trial Chamber has a discretion to excuse an accused from this duty to be present.
  2. By stating that the test for such an excusal was that “…In exceptional circumstances […] the
    Chamber may exercise its discretion under Article 64(6)(f) of the Statute to excuse
    an accused, on a case-by-case basis, from continuous presence at trial. […] The
    exceptional circumstances that would make such excusal reasonable would
    include situations in which an accused person has important functions of an
    extraordinary dimension to perform.”

Like the Judge Carbuccia in her dissent, the Prosecutor worried that this decision could create inequality between different accused: some (like Joshua Sang) without important functions that meet the test would always have to be present whereas the more powerful accused (like Kenyatta or Ruto) would almost always be able to negotiate their absence from court owing to the functions that they perform.

The Prosecutor felt that prompt reference of the issue to the Appeals Chamber would move the case forward expeditiously. She pointed out that a similar point must be decided by the Kenyatta Trial Chamber. She also raised the question of whether, after a lengthy trial, Ruto’s absence could be used as a grounds to appeal a possible conviction on the argument that his right and duty to be present was non-derogable and could not be waived either (i) by his choice or (ii) at the court’s discretion. Thus she wants the issue settled before trial so that time and expense are not applied to proceedings that could be nullified much later over the absence question.

The Defence replied to this application by arguing that the Prosecution’s grounds for appeal were speculative, implausible, remote and/or theoretical. The Defence felt that the Prosecutor simply disagreed with the majority decision but had failed to show any appeal-able issue. According to the Defence, the Prosecutor had not shown how deciding the appeal would assist in the expeditious and fair conduct of proceedings. Further, the Prosecutor had misunderstood the test laid out by the court for ‘exceptional circumstances’. According to the Defence, the test had little or nothing to do with the executive functions of the the accused.

The Defence argued that the issue of a possible appeal against conviction does not arise because William Ruto waived his right to appeal on an issue that turned on his voluntary absence from proceedings. Finally, the Defence suggested that the Prosecutor’s argument that this issue could affect other cases before the ICC was a policy argument that could not validly be advanced to support an appeal on an issue specific to this case.

The Majority of the Trial Chamber (Judge Eboe-Osuji dissenting) agreed with the prosecutor that there were appeal-able issues in the application. The judges also agreed that the issues would significantly affect the fair and expeditious conduct of the trial or its outcome; if Ruto were convicted and appealed, the risk existed that parts or all of the trial being nullified because of his absence at certain stages. This would lead to significant delay. Furthermore, conducting the trial with this issue hanging over it would lead to greater uncertainty if there is evidence that was heard while Ruto was absent from court. Therefore, fairness required the Appeals Chamber to review the decision now, before trial gets underway.

Judge Eboe-Osuji dissented because he did not feel the issues raised significantly affected the conduct or outcome of trial in the way the prosecutor was arguing. He appeared to agree with the Defence that the arguments put forth for leave to appeal were largely hypothetical and based on many ‘ifs’, ‘mays’, and ‘possiblys’ which required speculation about what might happen in the event Ruto got convicted. He also felt that the Prosecutor was wrong when she complained that the principle of equality before the law was violated by the test requiring the accused to show ‘exceptional circumstances’ for his absence. The judge felt that the law

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

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