Tag Archives: OTP-4

Recent Court Documents from the 2 ICC Kenya Cases 09 June 2013

The 2 Kenya cases will now be tried by two trial chambers according to a decision of the Presidency.

The Ruto, Sang case will heard by Judges Olga Herrera-Carbuccia (who is usually a Pre-Trial Judge), Robert Fremr and Chile Eboe-Osuji. It is designated Trial Chamber V(a).

The Kenyatta case will be heard by Judges Kuniko Ozaki, Robert Fremr and Chile Eboe-Osuji. It is designated Trial Chamber V(b). Judge Ozaki was also elected the presiding judge in this case

In removing her from the Ruto, Sang case, the decision states that Judge Ozaki’s workload (like that of Judge Wyngaert) had become excessive. But unlike Judge Wyngaert, the Presidency only removed Judge Ozaki from one case. Reading Judge Ozaki’s request to be excused, it’s interesting to see her cite, among other matters, ‘the unique demands’ and the ‘unprecedented filings’ by parties in the Kenya cases as part of the reason why the workload is now excessive- and the volume of filings is increasing as the trial dates draw nearer. It reminds me of what Fatou Bensouda said about the Kenya cases being the most challenging she’s had to prosecute. Maybe there’s something to be said for the claim that the ICC has not experienced a headache quite like these Kenyans!

Subsequent to the decision of the Kenyatta Trial Chamber to proceed with that trial, the Prosecutor conducted a review to check if there was anything that needed to be disclosed to the defence but was erroneously omitted from prior disclosure. The court had demanded that the Prosecutor review its evidence and its internal procedures to ensure the problems related to witness OTP-4’s affidavit were not repeated. The Prosecutor has identified several items of evidence as a result of this review and has stated that she will disclose these to the defence.

Why The Court Held that Kenyatta’s Case Must Continue

The Trial Chamber came to a decision on the Kenyatta Defence’s Article 64 application.

The Kenyatta defence had filed this application seeking to have the case either terminated, ‘permanently stayed’ or referred back to the pre-trial chamber. This came on the back of disclosure to the defence of OTP-4’s controversial affidavit and the decision of the Prosecutor not to proceed with the charges against Muthaura.

The Court’s Analysis

The court determined that failure to disclose OTP-4’s affidavit showed deficiencies in the Prosecutor’s evidence-handling practices, but did not warrant the extreme solution of a stay nor did it require asking the PTC to re-open the confirmation decision as the Trial Court was competent to resolve the matter. The court also was not convinced that delayed disclosure made a fair trial impossible.

The Court also pointed out that although OTP-4’s affidavit should have been disclosed in good time, the defence argument that the entire confirmation was flawed and should be re-opened represented an attempt to make the Trial Chamber an appeal chamber against the PTC’s judgement. The judges were not prepared accept such an unprecedented role. They also felt that the defence had not shown how the affidavit impacted the confirmation proceedings, rather, the defence simply used the affidavit to criticised the PTC’s methods and analysis. Finally, the defence seemed to ‘overstate’ the impact of OTP’s affidavit (and OTP-11’s screening notes that were also disclosed after confirmation): they could not show that a reasonable PTC could have come to a different conclusion bearing in mind the other evidence before it.

The same went for the defence argument that the new material and witnesses disclosed after confirmation proceedings materially altered the Prosecution case such that it would not be possible to proceed to trial. The Judges felt that despite the new material, the Prosecutor had stayed within the ‘facts and circumstances’ stated in the Document Containing Charges (DCC); even if there were changes made to the Pre-Trial Brief, it was the DCC that formed the borderlines of the Prosecutor’s case. In addition, the new material could not justify sending the case back to the PTC as the new material arose when the matter was within the rightful jurisdiction of the Trial Chamber, therefore it was the body responsible for handling the issue.

The court, however, criticised the volume of new material that the Prosecution brought after confirmation, noting that the burden was on the Prosecutor to show that such witnesses and material could not reasonably have been procured before confirmation. In this case, however, the court was satisfied that the ‘challenges’ with regard to investigating in Kenya sufficiently explained the late disclosure of large amounts new evidence.

In relation to Prosecutorial ethics, the Court criticised the Prosecutor’s failure to disclose the affidavit to the defence, but did not find anything to show fraud or intentional non-disclosure as the Defence had argued. The court also felt that to issue a stay on the basis of Prosecutorial misconduct would be excessive; the judges restricted themselves to issuing a reprimand.

Flowing from it’s reasoning, the court decided that the appropriate remedies were to reprimand the Prosecution for its conduct and give the defence more time to prepare their case (the Defence subsequently asked for trial to begin in January 2014).

Judge Wyngaert, in her brief separate opinion, was caustic about  Prosecutorial behaviour. She felt that the prosecution made only generic explanations for its difficulties in investigations and did not show how the situation (particularly for witnesses) had changed post-confirmation- if indeed the situation had changed. Several times the judge described the Prosecutor’s office as ‘negligent’ and she was clear that the negligence violated defence rights to a fair trial. But crucially, she accepted the mitigating factors for the Prosecutor who was operating under ‘difficult circumstances’.

Judge Eboe-Osuji aligned himself with the rest of the court on the main issues but had a lot more to say on the issues of fraud, OTP-4, the PTC’s analysis of evidence and of Post-Confirmation investigations. He categorically refuted the defence allegation of bad faith and fraud on the part of the Prosecutor. This is arguably correct: not only is ‘fraud’ an allegation of criminality that carries a high level of proof, but the actions of the Prosecutor in remedying the disclosure failings of her office contradict such a finding. Indeed, though the defence did not see OTP-4’s affidavit till late, it had been disclosed in full to Judge Trendafilova during confirmation proceedings; the Prosecutor admits however that she should have drawn the judge’s attention to the contradiction between the affidavit and OTP-4’s previous statements on the 3 January 2008 meeting. Judge Eboe-Osuji also felt that public policy was against sending the case back to the PTC; this would cause further delay in proceedings and judicial inefficiency. The Judge also cautioned the defence against drawing too much from the PTC’s assessment of OTP-4’s credibility. He pointed out that the PTC has a very limited role in assessing the credibility of witnesses compared with the Trial Chamber. Therefore a court should be reluctant to ask the PTC to reopen confirmation proceedings on the basis of additional evidence casting doubt on the credibility of confirmation witnesses.

Where Judge Eboe-Osuji parted ways with the main decision was on the question of post-confirmation investigations. The judge felt that the reasoning of the majority would unreasonably restrict Prosecutors in future cases from pursuing such investigations, even when they would be in the interests of justice.

Judge Ozaki also agreed with the main decision, but felt that the test for issuing a stay and the test for remitting a matter to the PTC should be applied separately. To her, it seemed that the main decision had decided both issues together without fully analysing each. She further felt that there should never be a reason why a Trial Chamber would refer back to the Pre-Trial Chamber an issue about framing of the charges- an issue that she felt was solely within the competence of the Prosecutor. In other words, the Trial Chamber could not refer back something over which it had no power to begin with. Instead, she felt that in the event there is a problem with the charges, the Prosecutor should be invited to amend them and, failing this, the Trial Chamber could discontinue the trial on the basis that a violation of the right to fair trial had occurred.

Way forward

Does this judgement feed the anti-ICC position? I think not, but it won’t stop Kenyan politicians and the Executive from making hay from this. For example, the A-G has been vocal recently about the cooperation that Kenya has given the court. So the fact that the judges partly accepted the Prosecutor’s argument that investigating in Kenya has been a challenge suggests that the A-G’s cooperation argument may not be as strong as he portrays it. The court was also clear in separating criticisms of the choice of cases by the Prosecutor from criticism of her conduct of those cases. As Judge Eboe-Osuji explained, allegations of bad faith or egregious conduct by the Prosecutor should not cause the Trial Chamber to lose sight of the important role it is playing in bringing accountability for Post-Election Violence. The same advice should go to the opponents of the ICC.

Sadly, the AU has joined the bandwagon of criticising the ICC wholecloth without differentiating between poor Prosecutorial practice and the fitness of the ICC for its purpose of breaking down walls of impunity. Of course the conclusion that the Prosecutor may have been negligent in handling the Kenya cases won’t help matters- even if she reforms the internal functioning and evidence review in her office what guarantees are there that it had not happened in the past and will not happen again?

But what the court did not say was the very thing that Uhuruto’s political and diplomatic defenders have been arguing- that the Kenyatta case was too weak to ever go to trial. It is this telling omission that is probably motivating the accused and their associates to rejuvenate exhausted shuttle diplomacy for another lap around the globe.

To use a sailing metaphor: the fact that her sails had big holes in them does not mean that the Prosecutor’s ship was sailing in the wrong direction- only that the Prosecutor should probably have prepared better before leaving port. Only a full trial can determine whether her destination (conviction of the accused) is within reach according the evidence.

Recent Court Documents in the 2 ICC Kenya Cases 30 April 2013

The Trial Chamber granted leave to the Kenya government to make submissions on the cooperation that it has provided to the ICC. Earlier this month the Attorney General had filed an application for leave, complaining about the Prosecutor’s accusation that her investigations were hampered by a lack of cooperation from the Kenya government. The parties to the proceeding as well as the Legal Representative have 14 days (from 24 April) to respond to the GoK’s submissions.

The Legal Representative for Victims in the Ruto, Sang case has responded to the application by Ruto to waive his presence during much of his upcoming trial (owing to his ‘workload’ as Deputy President). In his response, Wilfred Nderitu argues that the accused’s presence is not a right that he can choose simply to waive. Furthermore, in other cases where the accused’s absence was accepted, this was strictly for short periods and due to unavoidable circumstances. Finally, he concludes by noting that having accused absent from their own trials may lead to participation lethargy among the victims and a feeling that ICC proceedings are merely symbolic.

The Kenyatta defence team complained about 4 documents that they felt the Prosecutor failed to disclose to them in a timely manner. The documents allegedly show further inconsistencies and contradictions in infamous OTP-4’s evidence. The defence team wanted to file additional submissions to the court in light of this recently disclosed information.

Quick Updates on the Kenya cases

Lots has happened in the last week or so, I’ll give a brief summary.

We’ve received more clarity on the type of misconduct and specific allegations that the defence is making against the OTP’s lawyers (I remember wondering why Muthaura’s lawyers were so quick to hire a former OTP counsel to assist in the preparation of its defence; now I wonder no more). The defence teams filed recent documents detailing their accusations that the several members of the OTP team withheld crucial evidence. One defence team called it a ‘win at all costs’ attitude. Clearly in there Kenyatta/Muthaura case, there is a full-court press against the OTP: challenging its evidence, its case theory, its case preparation and the ethics of its lawyers.

The Trial Chamber held a status conference on 18 March. During the conference, the discussion was about the effect of the withdrawal of charges against Muthaura on the Kenyatta case. The Judges were interested to hear what the participants thought about the element of the common plan which must be proven for there to be indirect co-perpetration liability. In other words, if Kenyatta and Muthaura were charged as indirect co-perpetrators it means the OTP had to prove that each made essential contributions such that one or the other would have frustrated the common plan by failing to perform their essential part. Therefore, the defence argument is that if Muthaura’s essential contribution is unproven/non-existent, then it follows that the common plan theory must also fail and this fatally undermines the Kenyatta case (at least in relation to this mode of liability).

The Prosecutor challenges the ‘essential contribution’ test as well as whether the collapse of the case against one indirect co-perpetrator can directly affect the case against the others in such a significant way. She wants the focus to be Kenyatta’s contribution, not the absence of Muthaura’s contribution. It seems that Judge Wyngaert has her own reservations about the mode of liability called ‘indirect co-perpetration’ which she made clear in her separate opinion in the Ngudjolo case. However, she and the other judges offered the Prosecutor a potential get-out-of-jail card by asking whether they might consider trying Kenyatta as an indirect perpetrator (i.e. drop the need for common plan, joint control theory, etc. that comes with having a co-perpetrator).

Further written submissions will come and the Chamber will rule on what happens to the Kenyatta case.

 

In addition, the Trial Chamber has now officially accepted the dropping of the charges against Francis Muthaura

Finally, as if there were not enough developments this case, witness OTP-8 in the Ruto/Sang case apparently felt the pangs of a heavy conscience and decided to unburden it by revealing that testimony the witness gave against Mr. Ruto was untrue. Unlike the OTP-4 issue in Kenyatta/Muthaura which had been simmering since the confirmation proceedings (when the defence first publicly raised questions about OTP-4), one can’t help but see a correlation between OTP-8’s Damascus moment and the new political dispensation in Kenya. Perhaps the correlation is simply a coincidence. We shall see.

Court Postpones Kenya Trials, Prosecutor Drops Charges

Subsequent to the Status Conferences last month and after hearing observations from the parties, the Trial Chamber postponed the Kenyatta/Muthaura case to 9 July 2013.

 

A week later, the Prosecutor decided the case against Muthaura was no longer worth pursuing in its current form. She has now dropped all charges against him, according to this press release.

 

 

She gave the following reasons for dropping the charges:

  • “…the fact that several people who may have provided important evidence regarding Mr Muthaura’s actions, have died, while others are too afraid to testify for the Prosecution.
  • the disappointing fact that the Government of Kenya failed to provide my Office with important evidence, and failed to facilitate our access to  critical witnesses who may have shed light on the Muthaura case.
  • the fact that we have decided to drop the key witness against Mr. Muthaura  after this witness recanted a crucial part of his evidence, and admitted to us that he had accepted bribes.”

 

This is unprecedented at the ICC, though witness tampering has happened in cases in other tribunals (such as the ICTY). Of course, the defence argument would be that had she done sufficient investigations, she would have clearly seen the weaknesses in this case. This does not directly affect the Kenyatta case which the OTP will continue. Also no word as to whether the Prosecutor would seek fresh evidence to bring new charges for confirmation; this is not an acquittal, so the Prosecutor can still investigate Muthaura if she still believes he had a role in the crimes alleged.

 

The Trial Chamber has also postponed the Ruto/Sang case to 28 May, giving the Defence just over a month more to get ready.

Recent Court Documents in the 2 ICC Kenya Cases 02 March 2013

The Kenyatta defence filed its observations on the impact of the Prosecutor’s disclosure and investigations on their ability to prepare a defence for trial. The defence team felt that the Prosecutor’s actions forced them to unnecessarily expend enormous investigatory resources and time (due to the volume of disclosure). They also repeated the allegation that the Prosecutor’s case has fundamentally changed from what she presented to the Pre-Trial chamber. They accuse the Prosecutor of doing so in order to shore up her case following the withdrawal of OTP-4 (the witness who changed his story about key meetings Kenyatta and Muthaura were alleged to  have attended).

One new allegation the defence complained about is of a meeting with an intermediary and Mungiki members alleged to have taken place at Marble Arch Hotel on Tom Mboya St. in Nairobi. The defence wants the Prosecutor to be clearer about the details of the meeting; defence investigators will need to gather relevant information.

Marble Arch Hotel. Image Copyright nairobicity.com

The Defence team was also concerned about an older allegation, the ‘Nairobi Club’ meeting. They feel that the Prosecutor’s description of the meeting and the date on which it took place have become vague and unclear, making it difficult to challenge or answer this allegation.

Nairobi Club Lower Lounge. Copyright Nairobi Club

The defence felt that the supposedly fresh allegations, inserted after ‘unbridled’ Prosecution investigations and disclosed at the last minute to the defence, infringed the fair trial rights of the accused. The Kenyatta defence also pointed to the list of witnesses (expanded after the confirmation proceedings) and the number of witnesses and documents still to be disclosed to them. As a result, they asked the court to vacate the trial date.

The Muthaura defence also wanted the trial date pushed forward, and made additional submissions (they already argued the same point at the Status Conference) to the court pointing out that certain audio recordings that needed to be translated before being disclosed to them are not yet available and are not likely to be available before the April trial date.

Lapsing into bad habits

After referring to his ICC case a ‘personal challenge’ during the first Presidential debate, Uhuru Kenyatta is evidently not averse to publicly referring to it in his campaigning. According to this article, he rhetorically asked a crowd in Meru that “If Muthaura’s case is collapsing, is that not an indication even mine will go nowhere?”

 

This is presumably a reference to the application by the Muthaura defence to have the case referred back to the Pre-Trial Chamber on the basis that there was a ‘fraud’ against the proceedings and the PTC was misled into confirming charges against the former ambassador. This is based around facts that led to the withdrawal of witness OTP-4 from the Prosecutor’s list of witnesses.

 

While there is a lot of speculation about the cases, it is unfortunate that, as a Presidential Candidate, Kenyatta could not restrain himself from publicly pronouncing on matters still before a court.

 

Nonetheless, perhaps he and his running mate have cause to be particularly jubilant over recent good news: the dismissal of the Integrity Case against them, OTP-4’s supposed about-turn and the fact that Kenyatta was rated a top debate performer (at least in the first round).

 

But it’s a little early to analogise from the case of his fellow accused because (a) Muthaura is a defendant until charges are dismissed and (b) simply because there may be fundamental issues in Muthaura’s case does not mean Kenyatta’s case must go the same way. More so because the Prosecutor still seems to have Kenyatta in its sights for alleged witness tampering.

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

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

AfricLaw

Advancing the rule and role of law in Africa