The Prosecutor in the Ruto/Sang case applied to the Court for certain in-court protective measures for some of her witnesses. The court granted part of the request: one witness would testify under a pseudonym, with voice and face distortion. Other witnesses will be monitored, with update information passed to the Court in case they require such protection. The other request by the Prosecutor for the use of closed sessions and redaction (censorship) of the public transcripts would be decided on a case-by-case basis as need arises, rather than generally for each witness.
The East African countries of Tanzania, Uganda, Rwanda, Burundi and Eritrea submitted notes verbal (unsigned diplomatic statements explaining the countries’ positions or requesting further action) as well as applications to be friends of the court (amici curiae). Eritrea is not a state member of the ICC. The Registry passed these documents on to the Appeals Chamber. These five countries wanted to be friends of the court in the Prosecutor’s appeal against the Decision on William Ruto’s continuous presence at trial.
The Appeals Chamber sought the opinions of the Prosecutor and the Defence as to the applications by the states.
The Prosecutor felt the issue was narrow and legal in nature, therefore the observations of the state would not really assist the court in making a decision.
The Defence felt the Countries observations would be helpful to the court given that matters of state cooperation would surface in the course of the appeal.
The Appeals Chamber allowed Tanzania, Rwanda, Burundi, Uganda and Eritrea to file observations as friends of the court. Judge Usacka disagreed with the decision of the majority of the judges.
The Defence in the Kenyatta case asked the court to compel the Prosecutor to give a thorough review of its pre-trial brief and re-submit a corrected version. The request also seeks disclosure of a compiled material allegation schedule.
The Kenyatta defence also replied to the Chamber request for additional submissions on the venue of the trial, it stated that it had no objections to the opening (or other material portion) of the trial being held in Tanzania or Kenya.
By contrast the Prosecutor argued against the change of venue. Her view was that since Francis Muthaura, who initially raised the matter was no longer a party to proceedings, and none of the current parties had sought a change of venue, the Trial Chamber could not do so on its own initiative. She also pointed out that the public perception of the court in Kenya was gravely hostile and the court would have trouble getting cooperation from the Government, while the Prosecutor would be impeded in her work. She told the Chamber that there was a risk of surveillance- especially electronic surveillance- of the OTP by Kenyan authorities. This risk, she argued, extended to the judges as well.
The Prosecutor also repeated her worries about witness intimidation and interference, both in Kenya and Tanzania.
The Registry while unopposed to sittings in Kenya or Tanzania, wanted them to be short- possibly limited only to opening statements and the testimony of an expert witness. This would limit the cost of the trial proceedings shuttling between The Hague and East Africa.
The Common Legal Representative felt that without a request from any of the parties, the Chamber could recommend to the Presidency a change of venue. In addition, over 90% of the victims he represents wanted the trials held at the Hague rather than Kenya or Tanzania.
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.