The Kenyatta Defence made further complaints about the Prosecutor’s disclosure practices. This time, OTP-11 is the subject of concern. OTP-11 is a key witness to the alleged 30 December 2007 Statehouse meeting which, according to the Prosecution, Kenyatta attended; this and other meetings are part of the case for a common plan to perpetrate crimes in Naivasha and Nakuru. The defence feels that the Prosecutor unjustifiably delayed disclosing screening transcripts about OTP-11. According to Kenyatta, these transcripts contain evidence that potentially undermines the Prosecutor’s case- such as collusion and fabrication of evidence by OTP-11 and OTP-12. The Kenyatta defence had previously accused OTP-11 and OTP-12 of participating in an extortion attempt against the accused. The submission concludes by repeating the request to the Trial chamber to either terminate the case, stay proceedings or return the case back to the Pre-Trial Chamber to review the confirmation decision.
Nearly a month ago, the Chief Justice received a threatening letter allegedly sent by a group calling itself Mungiki Veterans Group.
The Prosecutor passed this letter to the Registry and the Registry attempted to bring this document to the attention of the Court on the basis that it concerned the overall security situation in Kenya. The Trial Chamber refused, however, to accept this filing, noting that it was improper for the Registry to simply pass on something that was given to it by a party to the proceedings. In addition the Registry did not specify what action it wanted the court to take as a result of this document nor did it show how this filing was part of the discharge of the function of the Registrar. The Court left open the possibility that in the event that the matter of the letter to the CJ needs further action, the Registry can file an application to the Trial Chamber using the proper procedure.
The Victims and Witnesses Unit filed an amended witness familiarisation protocol to implement the Trial Chamber’s decision on contact between parties and their witnesses.
The VWU asked the Trial Chamber to clarify the witness protocol with regards to contact between the Parties and the witnesses that they intend to call. Link to the Ruto/Sang request here; link to the Kenyatta/Muthaura request here.
The Registry filed observations in the Ruto/Sang case on the request to shift the trial venue to East Africa. The observations are much the same as those that the registry made in the Kenyatta/Muthaura case, which I blogged about earlier. The Prosecutor also made her observations on this issue (largely repeating the issues of concern in her Kenyatta/Muthaura submissions.)
Both the Muthaura and Ruto/Sang defence teams indicated that they wish the venue of the trials to be closer to Kenya. The Trial Chamber (after a decision of the Presidency of the ICC) thereafter ordered participants to submit their views on this matter. Below are the responses received solely for the Kenyatta/Muthaura case.
In its observations, the Registry wants the Agreement on Privileges and Immunities (APIC) ratified by whichever country (Kenya or Tanzania are so far the only contenders) will host the trials. Kenya has neither signed nor ratified the APIC, though an ‘exchange of letters’ concluded last year covered the same subject matter. Tanzania has signed but not ratified the APIC; in other words, it is not legally bound by its terms, though it has expressed through its signature its approval of the APIC. The registry is happy with the security and infrastructure at the Arusha-based International Criminal Tribunal for Rwanda. The registry is less certain about security in Kenya given that the trials will start during the Post-Election period. The Registry also suggests that hearings away from the seat of the court should be limited to a few weeks to keep costs down. Another Registry concern is that court-approved Kiswahili translators will be busy at the Hague (the Bemba trial), therefore the court might need freelance translators if the trials move to East Africa. The submission also addresses logistical matters such as video/audio links, dissemination of public information, setting up of secure phone-links (for privileged or confidential conversations by participants), lack of technology for image and voice distortion for protected witnesses at the ICTR premises. The Registry conclusion is that Arusha is the best place if the trials are to move to East Africa.
The majority of victims, through their Common Legal Representative, want the Kenyatta/Muthaura case held at the Hague. Bear in mind that the CLR only consulted 155 of the victims permitted to take part in the trial; this may not necessarily be the view of the majority of victims of PEV. The victims consulted worry that the closer the defendants are to Kenya, the greater the possibility of of threats, intimidation and bribery. So the further away the trials are, the better for the victims’ security and the integrity of the process. A small minority wanted the trials in Nairobi so they could attend in person; worryingly, some of the victims consulted had already lost interest in the trial process as it had taken too long, in their view.
The Kenyatta defence also filed brief observations. The defence limited its views to affirming that the defendant will fully abide by any order by the court as to the venue of the Trial.
The Prosecutor agreed in principle that the proceedings should be brought closer to the victims but emphasised that security of witnesses, victims and ICC staff should be the priority. The Prosecutor also wants expeditious proceedings; moving the trials may add to the delay. She also questions whether Kenyans would in fact be better disposed to proceedings if they were brought closer to Kenya; there are fears (to which the victims also alluded) that the integrity of the process may be undermined by those with influence if the trial moves to East Africa. The Prosecutor suggests having some hearings (opening, closing statements, expert witness testimony, any unsworn statements by the accused and the testimony of the accused) in East Africa, while the rest of the trial will take place at the Hague.