Tag Archives: Status conference

Recent Court Documents in the 2 ICC Kenya Cases 16 September 2013

Subsequent to a Status Conference held late last month, the Trial Chamber issued a second decision on the conduct of proceedings clarifying matters regarding the Prosecutor’s time estimates. The current estimates are that the Prosecutor will take approximately 7 months to present her case. Other issues such as the questioning of witnesses are also canvassed in the decision.

The Trial Chamber also allowed the Prosecutor to add 2 new witnesses to her trial list. The catch is that these witnesses will not appear until the tail end of the Prosecution’s case. This, the Judges felt, will give the Defence adequate time to investigate and analyse the new witnesses’ accounts. The Court also asked the Prosecutor to disclose the identities of these fresh witnesses to the Defence by 9 September 2013

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

Trial Chamber V(A) ruled on Joshua Sang’s application to exclude expert evidence from Herve Mapeu. The application had been made confidentially, but has now been re-classified as a public document. Mr. Mapeu is a Prosecution witness due to testify at trial on the socio-political context of the Post-Election Violence. The Prosecutor had submitted the expert report prepared by Mr. Mapeu and the Sang Defence objected to its admission in evidence.

The Court felt that the socio-political situation around the 2007/08 period was sufficiently complex that it needed to here expert testimony to assist it in understanding this history. This was irrespective of whether other (non-expert) witnesses would testify on similar matters. The judges also agreed that the subject matter of the expert report did fall within the remit of a socio-political expert.

The Court held back from addressing Mr. Mapeu’s qualifications as an expert, stating that this was a matter to be addressed during trial after Mr. Mapeu has been examined and cross-examined by the parties. For the same reason, the Judges declined to make a ruling on other potential defence challenges to the report’s admissibility (e.g. whether it has probative value and the probative value outweighs any prejudice it may cause) until the report is actually submitted at trial.

The same trial chamber also held a status conference on 19 August to discuss the length of the Prosecution’s case, the time take to question witnesses and other procedural matters.

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.

Ruto/Sang Status Conference

The court ordered a status conference in this case to be held on the afternoon of 14th February 2013. It asked participants for their observations on what should be covered during the conference.

The Sang defence replied indicating its concern about cuts to the legal aid budget (from which Sang’s legal expenses have been paid), payments for his travel and stay in the Netherlands and asking that he not be restricted to the Hague during his stay in the Netherlands (his VISA conditions previously required this). The defence team further worried about the removal of certain prosecution witnesses from the final list of witnesses as well as the calling of at least 14 witnesses as to Sang’s conduct during the 2005 referendum- which they feel unduly extends the scope of the case. Apart from other organisational matters, the defence also wanted the Trial Chamber to explain how it will alternate between hearings of the Kenya 1 and Kenya 2 cases.

The Ruto Defence had fewer issues to raise in the run-up to the status conference, only asking for a similar extension of the Visa restrictions and noting its concern as to the late disclosure of evidence by the Prosecutor.

The Prosecutor reiterated her concern about attempts to contact and influence her witnesses. She also asked the court to get a public declaration from Ruto and Sang that they will appear when called for trial.

The Registrar made her observations, noting a number of logistical matters but focusing on the question of whether the Kenya 1 and Kenya 2 trials will be held simultaneously or consecutively. She estimates the length of the trials to be 18-36 depending on the mode of hearings. The Registrar notes that the simultaneous hearings model, from previous experience required extra costs, extra judicial resources (in terms of time). She recommended having 1-3 more judges for the 2 cases.

The Chamber, after receiving these observations, issued an agenda for the status conference on the following terms:

  1. Practical modalities for accused’s attendance at trial
  2. Delayed prosecution disclosure and its impact on the trial
  3. Scheduling of the two Kenya cases.

During the actual status conference the Chamber raised the question of 3 witnesses for whom full disclosure has been delayed by the Prosecutor. The Prosecutor explained that they were awaiting news from the VPRS on protective measures before disclosure can be fulfilled. The defence complained that there would not be enough time to investigate and prepare simply on the basis of the redacted summaries that the Prosecutor has so far provided. The specific matter of redactions concerned defence as they felt that this protective censorship shielded parts of the Prosecutor’s case from them such that they could not prepare adequately.

The defence also wanted screening notes from earlier meetings between the OTP investigators and some of the witnesses. Finally, the defence complained that the scope of the Prosecution case (the number of meetings by perpetrators, the number of tribes affected, number of witnesses etc.) kept changing. The OTP, however, denied any suggestion that the case had fundamentally changed and argued that the main witnesses and evidence were already known to the defence. The Trial Chamber will rule on this matter after written submissions are received.

 

The Defence also emphasised their preference for an Arusha-based Trial.

 

The court then turned to the scheduling of the two Kenya cases; like in the Kenyatta/Muthaura case, the Trial Chamber explained that it had communicated to the Presidency of the ICC suggesting that the cases by heard by separate trial chambers rather than just one. The court also indicated that resource limitations might mean that the two cases will share one courtroom; hearings for one case in the morning and the other case in the afternoon. Each hearing would last 4 hours.

 

The matter is in the hands of the Presidency of the ICC.

 

The OPCV made submissions on behalf of the Common Legal Representative of the Victims. He urged a longer period before the beginning of the trial so as not to coincide with the Kenyan elections (and presumably any run-off in the Presidential Elections).

Recent Court Documents in the 2 ICC Kenya Cases 10 February 2013

The Trial Chamber is preparing for a status conference in the run up to the start of the Kenyatta/Muthaura trial. It asked the participants (Defence and Prosecutor) to make submissions on matters such as the conditions of the summons to appear and any modalities for the defendants’ stay at the seat of the court. The status conference will be held on 14 February 2013 (next Thursday). The Accused, including Presidential Candidate Uhuru Kenyatta will be required there, either in person or via video-link.

The Prosecutor replied to the court, making short submissions. The main concern is that the accused may have/will violate the conditions of the Summons to Appear by interfering with prosecution witnesses. The submissions summarise previous alleged attempts to buy out witnesses or asking them to provide false testimony. The prosecutor also wants a public statement from the accused that they will attend trial. While aimed at all the accused, clearly the request for a public statement touches Kenyatta more; despite his promises to respect the court, his possible election as President offers the temptation to ‘Bashir’ the ICC.

The Kenya Human Rights Commission (KHRC) filed a request to appear as amicus curiae. In the request, they ask that witness identities not be disclosed sooner than is necessary. This is to protect witnesses from threats and intimidation. While the filing is not a model of clarity, it seems that KHRC seeks to support delayed disclosure applications made by the OTP. KHRC especially highlights witnesses who were PEV victims.

Unsurprisingly, given that the Court is already concerned about witnesses and has been permitting the OTP to delay disclosure of identities, the amicus curiae request was turned down. The Trial Chamber emphasised that it is aware of the issue of witness threats and the matter is already being handled by appropriate organs (VPRS and OTP). Therefore the KHRC proposed brief would not add anything new or helpful to the determination of the issues.

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

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