According to the website PhD studies in human rights, Prosecutor Fatou Bensouda is responding to the criticisms made against her predecessor Luis Moreno Ocampo and changing the way her office investigates international crimes under the ICC statute.
A fuller description of the new approach will probably appear soon on the ICC website, but some of the changes mentioned include:
- Ensuring cases are trial-ready earlier in the process rather than expecting, for example, that further evidence can be collected after confirmation of charges.
- Building from the bottom up i.e. starting by prosecuting lower level perpetrators and gradually building up to charging the persons bearing greatest responsibility.
- Less reliance on eye-witness testimony
- Consideration of alternative charges at an early stage of proceedings rather than focussing on one or two specific offences from the very beginning.
The new approach is welcome, if it improves the capacity of her office to sustain a case to a safe conviction. At the same time, one hopes that there will also be a thorough review of how the Prosecutor’s office works with local intermediaries- this is another issue that has dogged the Prosecutor’s office (most recently with the Kenya cases and allegations of witness coaching). The system needs greater transparency as the office will probably continue to use local organisations at some point in the course of its investigations
The Ruto defence asked the Trial Chamber to compel the Prosecutor to call P-0015, P-0016, P-0019, P-0024, P-0025, P-0028, P-0032, and P-0336 as its first 8 witnesses. The defence believes that these witnesses fabricated their account; calling them to testify in close order is an attempt to deny them time to collude in their testimony and to prevent them amending their testimony based on what they hear from other witnesses. It will also enable the Ruto defence- if the alleged conspiracy of lies is successfully exposed- to claim that the proceedings are an abuse of process. The team could then make an application to terminate proceedings at the earliest possible moment, rather than having to wait until the Prosecutor finishes her case.
In addition, the defence wanted the Prosecutor’s lead investigator called as the ninth witness to answer to the allegation that the OTP investigations into Ruto’s alleged crimes were inept and deficient. The defence further believes that a number of Kenyan and international organizations were involved in the 8 witnesses’ scheme to ‘contaminate’ the OTP’s evidence.
Finally, the defence indicated in its application that it may later request additional measures, such as having the 8 witnesses above segregated to prevent them discussing their testimony with each other.
One of the key battlegrounds in the Kenyatta/Muthaura case is the serious allegations by the defence teams that the Prosecutor was at best incompetent and at worst misled the Pre-Trial Chamber as to the sufficiency of evidence. The saga over OTP-4, the witness who recanted (if you believe the defence) or was bribed by associates of the accused (if you believe the prosecutor), brought this issue to the foreground last month. Although in the end the Prosecutor conceded that the case against Muthaura could not continue after the failure of OTP-4’s evidence, the accusations of fraud made against the Prosecutor have not been withdrawn as far as I can tell.
These allegations, though unproven, raise the question of what remedies are available in the event that investigations reveal Prosecutorial misconduct. The defence teams tend to argue for an absolutist approach: dismissal of charges, acquittal, re-hearing of the case or full compensation. This position is understandable given that Defence counsel are protecting their clients’ interests. However, a recent academic article by Prof. Jenia Turner, ‘Policing International Prosecutors’, suggests that a more balanced approach by the court is possible. Such an approach might take more account of the needs of international justice, the rights of victims, the importance of ensuring a correct historical record and proportionality (the scale of the punishment should fit the scale of the misconduct). A discussion of the article and the matter of Prosecutorial Ethics is going on at Opinio Juris.
I’m back and refreshed after an election season in which we surprised everyone, including ourselves, by respecting the decisions of our institutions.
It was touch and go when activists like Dennis Itumbi were orchestrating campaigns against the Supreme Court alleging that it was compromised by the CJ’s supposed closeness with Raila Odinga. Itumbi, some may recall, was arrested late last year on the suspicion that he was witness tampering (hacking into email accounts of protected witnesses in the Kenyatta/Muthaura case). After his release, he made a complaint against the ICC prosecutor which the Trial Chamber dismissed on the basis that the Prosecutor had no role in his arrest.
On to recent news from the ICC cases: the pre-trial chamber has approved an addition to the charges facing Kenyatta. Judge Trendafilova allowed the Prosecutor to re-insert an allegation that victims were shot dead Nakuru and Naivasha in the course of the attacks against civilians. The guns identified by the Prosecutor are AK47s and G-3 rifles- both types are common in Kenya and are standard issue amongst Police and Paramilitary formations. The Judge further stated that after confirmation of charges, the Prosecutor could only amend charges with the consent of the court. No consent is ordinarily required prior to confirmation. According to the court, the Prosecutor was required to provide evidence supporting her allegation- this she did through four witness statements. Judge Trendafilova, after analysing the statements and party submissions on the matter ruled that this was sufficient to permit the Prosecutor to amend the charges.
The ruling also carried a blunt warning to the Prosecutor that in carrying out investigations after Confirmation of charges, she must bear in mind that the Court will require an explanation from her as to why she was unable to produce the evidence prior to confirmation. Any such evidence will be analysed to ensure that it is necessary to establish the truth, or that it is justified in ‘certain circumstances’.
So why was the Prosecutor unable to produce this evidence earlier at the confirmation proceedings? The answer, according to Judge Trendafilova’s ruling, is troubling. The Judge was persuaded by the Prosecutor’s explanation that investigations were hampered by threats to witnesses, lack of cooperation, security concerns and difficulty in approaching insider witnesses. If this was the operating environment for the Prosecutor prior to these elections, it is likely to get worse now that Uhuruto are in charge of the nation’s executive organs. Despite the institutional independence ingrained in our constitution, old habits of knee-jerk loyalty to State House die hard. The Prosecutor is unlikely to get much more cooperation out of Kenya’s security and intelligence apparatus; though it would be a pleasant surprise if she did.
And with unrelenting pressure on her witnesses, it’s understandable why Fatou Bensouda calls these the hardest cases she is undertaking at the ICC.
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.
The Defence teams replied to the Prosecution Observations on the Conduct of it’s investigations. This matter arises from the Prosecutor’s application to amend the DCC to include the allegation that some victims of PEV were shot dead. The defence teams argue that Prosecution investigations were unnecessarily protrated and wholly insufficient. They ask the court not to allow any new evidence to support allegations excluded by the Pre-trial chamber as this may create a precedent for the Prosecutor to begin a case with inadequate evidence, hoping once the court confirms the case to continue with investigations up until trial. The result, they feel, will be a continued erosion of defendants’ rights
This, in fact is what the defence teams allege has already occurred in the Kenya cases. They claim that the Prosecutor disclosed a fraction of its evidence for confirmation purposes and brought a completely different case to the upcoming trial. A final point in the defence submissions is the argument that allowing new evidence on the factual allegations will be unjust as the defence has little time before trial to investigate the proposed witness testimony. The defence closes by asking for any decision on this amendment matter to be delayed until the hearing of its application to have the case referred back to the Pre-Trial Chamber.
In the same case, the Trial Chamber rejected the Defence application for leave to appeal the decision on witness preparation. The defence worried that the witness preparation decision was impractical and would prejudice the defence in their preparation for trial. The Trial Chamber felt that the 3 issues on which the defence sought to appeal failed to present ‘identifiable issues’ for a decision or amounted to mere disagreements with the Trial Chamber.