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.
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.