Modified Charges in the Ruto/Sang Case

The Trial Chamber released its decision on the Modified Charges Section in the DCC in the Ruto/Sang case. It is a shorter decision than the Kenyatta/Muthaura decision on the modified charges; the main issues that the Chamber dealt with were:

1. The defence objections to the way in which Sang’s alleged liability was described in the Modified Charges
2. The defence objections to the inclusion of an alleged attack on Kimumu.
3. Various other objections regarding the temporal scope and wording of the Modified Charges

Generally, the Trial Chamber left the Prosecution’s version of the Modified charges untouched, barring a few changes to the language and requiring greater precision on the temporal scope of the charges.

The Modified Charges in the Kenyatta/Muthaura Case

The Trial Chamber in Kenyatta/Muthaura case has issued a decision on the substantive content of the Modified Charges Section of the Document Containing Charges.

The court began by noting that the Confirmation decision is not the only authoritative statement of charges for the Trial. The Document Containing Charges (once harmonised with the Confirmation Decision) is sufficient.

Judge Eboe-Osuji also argued that, reading the Statute and the practice of other tribunals, there was little to suggest that the Confirmation Decision is the sole statement of charges at trial and that the DCC became irrelevant once charges were confirmed. Indeed, the judge pointed out that the very length of confirmation decisions (usually +150 pages) makes it impractical to read these documents to the defendant at the commencement of trial! The reading and explanation of charges is a procedural right of each defendant prior to their pleading guilty or not guilty. For this reason, the Judge preferred, at the trial stage, to use an accurate (and shorter!) Document Containing Charges.

Judge Wyngaert drew attention to the practice of the Prosecutor of including ‘background facts’ in the Document Containing Charges. The judge advocates a stricter approach whereby only facts directly material to the charges should appear in the DCC.

Some of the keynote changes that the Trial Chamber wants to see in the Modified Charges Section include:

1. Allowing the Prosecutor to allege that the Defendants facilitated Mungiki meetings.
2. Allowing the Prosecutor to refer to Muthaura’s alleged de jure authority over General Hussein Ali (the Pre-Trial chamber only made a finding as to Muthaura’s de facto authority)
3. Allowing the Prosecutor to refer to allegations that Muthaura ordered the Police not to interfere with Mungiki activity in Nairobi.
4. Allowing the Prosecutor to allege that mutilation to hide gunshot wounds occurred in Nakuru.
5. Stating that the Prosecutor should refer to Kenyatta and Muthaura’s alleged links not only with Mungiki in general but Maina Njenga in particular. This includes an alleged agreement for Mungiki and  Maina Njenga to support PNU
6. Allowing the Prosecutor to refer both to Mungiki and ‘Pro-PNU’ youth in describing some of the alleged perpetrators.
7. Requiring the Prosecutor to remove references to six victims allegedly shot to death.

Update 17/01/2013: In regard to Judge Eboe-Osuji’s comment that the DCC tends to be shorter than Confirmation Decisions; I have to say, given that the latest DCC from the Prosecutor numbers over 50 pages, there may come a time when the DCC rivals the Confirmation Decision for length.

Recent Court Documents in the 2 ICC Kenya Cases 5 January 2013

The last year, the Ruto/Sang defence applied to have the Prosecutor compelled to state whether she intended to rely on the same witnesses as at the confirmation hearings. Now the court has ruled on that application. I won’t keep you in suspense. The application was rejected. The court was quite clear that while it expects the Prosecutor to stick the deadlines in the schedule for disclosure, the judges do not require ‘pre-deadline disclosure’.

The trial chamber also rejected an application from Sureta Chana, the former common legal representative, to present the views of victims on their legal representation at the trial stage.

Photo Copyright: Saturday Nation

The Trial Chamber instead suggested that she file an amicus curiae (friend of the court) brief.

The Prosecutor has filed a response to an earlier filing by the Ruto/Sang defence objecting to some of the contents of the Modified Charges section of the Document containing charges. The prosecutor urges the court to dismiss the defence filing.