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.

Kenyatta/Muthaura Status Conference

The Trial Chamber ordered a status conference in this case prior to the beginning of the trial. It was held on the morning of 14 February 2013 (Valentine’s Day is evidently not a court-sanctioned holiday). The Judges asked participants to give their observations prior to that date on what should be covered during the conference.

The Registry submitted observations in the same vein as the Ruto/Sang Conference discussed above. The Prosecutor also submitted brief observations reiterating her previous concerns about the accused potentially violating summons conditions by interfering with witnesses.

After receiving these observations, the court set out the following agenda for the conference:

1. Practical modalities for the accused’s attendance at trial
2. Delayed Prosecution disclosure and impact on the trial date
3. Scheduling of the 2 Kenya trials.

On the day of the conference, the issue of delayed disclosure and its potential to hold up the trial came up. The Muthaura defence team was particularly vocal in protesting what they saw as the OTP’s tendency to dump evidence on them at ‘the last possible minute”. The word ‘fraud’ was hurled at the OTP (remember witness OTP-4?), with the Muthaura defence suggesting that the Prosecutor misled the Pre-Trial chamber. Judge Eboe-Osuji actually interposed to ‘suggest’ that the defence use a word other than ‘fraud’. All in all a fraught conference.

 

The Kenyatta defence stood up to criticise not just delayed disclosure but the process of redactions which according to them was unbearably onerous on the defence resources (as redactions are peeled away, counsel have to re-analyse each transcript and witness statement afresh). They also argued that these redactions make it difficult to assess the credibility of the sources of the evidence.

In the end both defence teams asked for a delay in the trial to investigate new evidence that the OTP is relying upon; so that the trial would not start in April. The court asked for written submissions that were filed on 20 and 25 of this month (more on them later). The judges then finished by informing the participants that they were awaiting the decision of the presidency on their request to have another chamber appointed so that each of the 2 Kenya cases is heard by a separate chamber.

The Curious Case of Witness OTP-4

About a week ago, the Kenyatta defence team asked the Trial Chamber to refer the case back to the Pre-trial chamber that issued the confirmation decision. They claim that failure to do so will cause a significant miscarriage of justice. The application stems from the alleged revelation that a witness (OTP-4) whose statement was admitted into evidence at the confirmation stage of proceedings lied about parts of his testimony.

A separate application was filed along the same lines by the Muthaura defence team. They request that the following issues be referred to the Pre-Trial Chamber:

1. alleged non-disclosure of potentially exculpatory evidence (OTP-4’s statements),
2. the changes to the Prosecutor’s case post-confirmation

The defence teams go further than simply asking for re-consideration, they suggest that the Prosecutor misled the Pre-Trial Chamber as to OTP-4’s evidence and if the true scope of his evidence had been known, then the Chamber would not have confirmed the charges. They base this allegation on the fact that the relevant document(s) were in the hands of the Prosecutor nearly a year before the Confirmation Proceedings, yet were not fully disclosed to the defence until last year (after the Confirmation of Charges). This is consistent with the theme of the Defence that the OTP failed in its ethical obligations (Remember as well that the Defence asked for a list of OTP counsel who will appear at trial as well as an indication of their ‘good standing’ with national bar organisations).

Both the Kenyatta and Muthaura teams’ applications ask for the Trial Chamber to vacate the date of trial and refer the question of the entire Confirmation Decision back to the Pre-Trial chamber for reconsideration. Regardless of what decision the PTC makes, it will inevitably create more delay in a case that has now stretched (in the various stages) through 3 years.

The Muthaura application suggests a less extreme measure of striking out any new allegations that the OTP made (in removing OTP-4’s evidence) in the pre-trial brief and preventing the OTP from leading evidence on those allegations at trial.

Clearly a significant part of the defence argument rests on whether one reads the alleged contradictory/recanted/fraudulent testimony as a ‘preliminary issue’ under Article 64(4) to be re-considered by the Pre-Trial chamber, or whether it should be an issue weighed up during the evidentiary stage of the trial. Looking at past decisions by ICC judges (Lubanga Judgement and the Confirmation decision in the Kenya cases) it is clear that judges are reluctant to remove even weak evidence from their consideration, preferring instead to duly note its incredible or inconsistent nature and then weigh it up with the rest. This might be difficult for the Trial Chamber given that- according to the defence- the Prosecutor has removed this witness from her list of witnesses for trial. Since the witness is under protective measures and only in communication with the VPRS and OTP, it is unlikely (but possible) that he will ‘turn’ and testify for the defence at trial. So the Trial court may never get the chance to hear from OTP-4. The solution may be to take things back to the Pre-Trial Chamber as the defence suggests. More on this as it develops.

Recent Court Documents in the 2 ICC Kenya Cases 09 February 2013

The Kenyatta/Muthaura defence teams have demanded that the Prosecutor produce a list of the lawyers who will be trying the case, and whether they belong to any national bar association and are in good standing with that bar. They also want a Prosecution code of ethics instituted by the Trial Chamber. The defence feels such a Code is important in order to regulate Prosecution investigations and dealings with witnesses, and encourage transparency in the trial proceedings. All Defence council appearing at the ICC must strictly adhere to the Code of Professional Conduct. This Code does not legally apply directly to the Prosecution.

The Prosecutor replied to the application by stating that neither a list of her lawyers nor information as to their ‘good standing’ before national bars would be helpful in ensuring ethical behaviour with respect to witnesses, since there is already a Witness Preparation protocol in place and avenues to monitor witness preparation as well as seek redress for violations of the protocol. She also questions whether a single trial chamber can institute a code of conduct for all  prosecuting lawyers in all cases before the ICC. The Prosecutor further points out that any misconduct by a prosecuting lawyer against the administration of justice in the case is adequately dealt with by sanctions under the Statute.

The VPRS filed its first periodic report on the Status of its activities, the Victims in the Kenya cases, and the activities of the Common Legal Representative. The VPRS states that it will be mapping victims, reviewing applications, training intermediaries and setting up a database of victims. During a November visit to Kenya, the VPRS officials travelled to Nakuru, Kakamega and Kisumu (this particular report is solely for the Kenyatta/Muthaura case). Some of the worries that victims expressed included whether only victims in this particular case can benefit from reparations, ensuring intermediaries are well trained, and ensuring the registration of genuine victims only.

In relation to the Sang/Ruto Case, the VPRS found similar issues; these particular victims met with the VPRS in Nakuru, Eldoret, Lugari, Turbo and Siaya. Victims were also concerned about tensions before the coming elections.

The Prosecutor in the Kenyatta/Muthaura case has applied to amend the Document Containing Charges (what we Kenyans call the Charge Sheet). I previously reported that the Trial Chamber ordered the Prosecutor to remove an allegation in the DCC that 6 people were shot dead in Naivasha. The prosecutor subsequently received evidence that shooting deaths did occur in the context of the attacks. She now wants to reinsert this allegation into the DCC without the need for additional hearings.

The Pre-Trial Chamber (single judge ruling) has asked for observations on the above request to amend. The rules require that the amendment request be addressed to the Pre-Trial Chamber rather than the Trial Chamber. One issue that concerns the Judge is whether, given that the OTP is supposed to have largely completed investigations by the Confirmations stage, it is appropriate for new evidence to be admitted and the DCC amended. The Chamber also wants clearer and fuller information and witness statements from the Prosecutor

Fergal Gaynor, the Common Legal Representative for Victims in the Kenyatta/Muthaura Case submitted his observations on the application to amend. Although not opposing the application, he argues that the victims he spoke to are worried about the delays in the case that may result from this amendment. 4 have already died, according to Gaynor, some from medical/psychological effects of the PEV. Therefore, the victims wish to see ‘justice in their lifetime’.

The Kenyatta/Muthaura defence teams also submitted their observations. They feel that there is no reason why the OTP could not collect this evidence prior to confirmation of charges- therefore Prosecutor is abusing the latitude to submit new evidence prior to trial. They also feel that the prolonged publicity of the case in Kenya has now tainted the witness pool, therefore the court should be careful admitting new witnesses. The defence teams close by complaining again about the failure of the OTP to diligently investigate and to clearly ‘solidify’ the case; instead adding new witnesses and new allegations. They worry that the time to trial is too short to investigate the new statements to be produced by the OTP.

Update 18 February 2013: The Prosecutor submitted her observations about the conduct of her investigations, in which she disagreed with the Pre-Trial chamber as to the scope of her obligations with respect to post-confirmation investigations. The Prosecutor believes that only questions for the Pre-Trial Chamber are the sufficiency of evidence to support the amendment and any undue prejudice it may cause the defence at this stage- not whether and to what her office continued investigations after the confirmation of charges.