Tag Archives: Temporal Scope

Recent Court Documents in the 2 ICC Kenya Cases 19 November 2013

The Trial Chamber in the Ruto/Sang case granted protective measures that the Prosecutor requested for her witnesses. These include voice distortion, pseudonyms and face distortion. These measures are to be put in place directly the witnesses arrive at The Hague.

The Prosecutor in the Ruto/Sang case asked the Appeals Chamber for permission to ‘clarify’ her appeal against the decision of the pre-trial chamber denying her permission to change the temporal scope of the charges. The Ruto and Sang defence teams asked the court to reject the request.

The Ruto and Sang defence teams had confidentially filed a request to have information on Prosecution intermediaries disclosed to William Ruto. Intermediaries are the people who facilitated the initial and subsequent contact between the OTP and potential ICC witnesses. Some are compensated for the expenses they run up while working for the ICC; others are granted protective measures. The Ruto defence said that it wanted information on the intermediaries in order to effectively challenge the credibility of Prosecution witnesses and prepare for cross-examination

The issue of intermediaries nearly derailed the Lubanga trial- the first successful ICC trial- when the Prosecutor declined to provide full information about intermediaries to the defence. The Lubanga defence had alleged that some OTP intermediaries coached young former child soldiers to give false testimony incriminating the accused. The Lubanga Trial Chamber felt that the Prosecutor had violated the integrity of proceedings and issued stays of proceedings. Although the trial subsequently proceeded, the bickering over intermediaries and disclosure brought relations between the Judges and the Prosecutor to a nadir (see this helpful summary of the Lubanga case).

The Ruto/Sang Trial Chamber has now ruled on the issue of intermediaries. It ordered the Prosecutor to disclose to the defence teams a list of intermediaries who contacted Prosecution witnesses. The full identities of the intermediaries will not immediately be released; they will be referred to by pseudonyms. This, in addition to the high level of protection already given to OTP witnesses again highlights the concerns in this case for the security of those involved.

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Recent Court Documents in the 2 ICC Kenya Cases 18 November 2013

The Appeals Chamber asked the parties for their views on the CLR’s application. The Prosecutor said she had no objection to the CLR’s participation.

In the same matter, the Ruto and Sang defence teams filed written submissions asking the Appeals Chamber to deny the Prosecutor’s appeal to change the temporal scope of the charges.

The CLR in the Kenyatta case asked the court to deny Kenyatta’s request to be excused from continuous presence at his trial.

The Government of Kenya asked to make amicus curiae submissions on Parliament’s resolution to withdraw Kenya from the Rome Statute.

Recent Court Documents in the 2 ICC Kenya Cases 30 October 2013

The Common Legal Representative for Victims in the Ruto/Sang case asked permission to participate in the Prosecutor’s appeal to include the dates of 30th and 31st December in the temporal scope of charges. The CLR argues that if these dates are not included, victims who suffered harm during those two days will be permanently prevented from presenting their views to the court in the Ruto/Sang case (including seeking reparations if either accused is found guilty).

The Kenyatta Trial Chamber found that the conduct of the Kenyatta defence in the High Court case it filed seeking mobile telephone records did not violate the confidentiality of victims and protected witnesses.

The Prosecutor in the Kenyatta case made a second submission on the conduct of proceedings.

After the Kenyatta Defence made a request for conditional excusal from trial, the Prosecutor responded, asking the Trial Chamber to reject the request.

The CLR in the Kenyatta case joined the Prosecutor in demanding that the request be turned down.

Further Developments in the Ruto/Sang Case

The Prosecutor applied for leave to appeal the Pre-Trial Chamber’s decision rejecting her application to amend the temporal scope of charges. The Prosecutor wanted factual allegations beginning on 30 December 2007 to be included in the charges. Both the Sang and Ruto Defence teams (here and here) object to the application for leave arguing that there is no appealable issue raised, the issues raised would not affect the fairness or expeditiousness of proceedings and a decision by the Appeals Chamber would not advance proceedings.

The Plenary of Judges of the ICC rejected the joint Ruto-Sang Defence application to change court sittings to East Africa (either Kenya or Tanzania). 9 judges voted against changing the place of sitting to Kenya, 5 voted for this option. 9 judges voted against changing to Tanzania, 4 voted against and 1 abstained.

Though none of the majority judges objected to the principle of the request, many were swayed by security concerns for victims and witnesses, by the potential for demonstrations and disruption and some were convinced the cost of holding parts of the proceedings in East Africa were not justifiable. In addition, according to dissenting Judge Eboe-Osuji, some may have been swayed by a late submission by the OTP on the eve of the Plenary decision that seemed to change the OTP position from being in favour of a trial close to the site of alleged crimes to one in which the Prosecutor felt it was not in the ‘interests of justice’ for the trial to be held in Kenya or Tanzania. The judge thought this late submission an ‘ambush’ by the Prosecutor, which gave the Defence no chance to reply prior to the Plenary Decision.

An open letter to the President of the ICC, written by Gladwell Otieno and arguing against holding the cases in Kenya, was the target of scathing words from Judge Eboe-Osuji. The judge noted that Otieno was a petitioner against William Ruto and Uhuru Kenyatta’s election as Deputy President and President respectively.

Here is the Supreme Court Judgement upholding that election as well as the People’s Court website run by, among others, Gladwell Otieno’s organisation. The People’s Court is an attempt to keep public debate about the March 4 Election litigation alive now that the election of Kenyatta and Ruto has been upheld.

Judge Eboe-Osuji felt that whereas Otieno’s letter had allegedly stated concerns about the politicisation of the cases if brought to East Africa, she, in fact, was contributing to the perception of politicisation by her direct involvement in this matter given her prior interest in seeking to nullify the political victory of the accused. It did not help, according to the Judge, that the Prosecutor appeared to have altered her views on the change of venue in a manner that coincided with Gladwell Otieno’s letter.

A change of venue application is also pending in the Kenyatta case; its prospects don’t look promising in light of the reasons the judges gave for rejecting the Ruto-Sang application.

The Trial Chamber rejected the parties’ suggestions for an ‘on-off’ court sitting schedule. However, the judges kept open the door that they may vary this schedule once the Kenyatta case starts.

The Trial Chamber also decided on the disclosure of screening notes of 12 Prosecution witnesses who will not be called at trial. The Court ordered disclosure of the notes to the Ruto Defence in full.

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

The Ruto/Sang Trial Chamber issued its trial directions on the following:

  1. Opening Statements
  2. Procedure for reading of charges
  3. Procedure of objections during proceedings
  4. Duration of Prosecution case
  5. Scheduling of Prosecution witnesses
  6. Examination of witnesses
  7. Use of Documents during Witness examination
  8. Introduction of evidence through a witness
  9. ‘Bar Table’ Applications
  10. Introduction of Prior Recorded Testimony
  11. Self Incrimination
  12. Protective Measures
  13. Agreed Facts
  14. No Case to Answer Motion
  15. Site Visits
  16. Transcripts of Hearings

Subsequent to this decision, the OTP revised its time estimates for presenting its evidence.

The William Ruto and Joshua Arap Sang filed declarations stating that they understood the charges against them.

The Ruto Defence, in light of the Appeal Decision granting Suspensive Effect, asked that the court hold sittings in the format of ‘2 weeks on, 2 weeks off’ in order to ensure that Ruto is present at all times, but to also allow him to juggle his duties as Deputy President with his obligations to cooperate with the court. In her reply, the Prosecutor said she did not object to the application provided witnesses are allowed to complete their testimony before the 2 week breaks begin. She also suggested that ‘3 weeks on, 3 weeks off’ might be more appropriate for efficiency. The Common Legal Representative supported this view.

The Pre-Trial Chamber, through Judge Trendafilova rejected the Prosecutor’s request to amend the charges to extend the temporal scope of the crimes alleged in the greater Eldoret area from ‘1 January to 4 January 2008′ to ’30 December 2007 to 4 January 2008’.  The Prosecutor made the application confidentially several months ago; it has now been re-classified as a public document. The PTC went further and criticized the Prosecutor for inefficiency and lack of diligence that led to the request being filed- noting that she delayed the request for nearly 7 months. The judge felt that the Defence had insufficient notice and she could not assume that they would be adequately prepared to meet the new temporal elements just a few weeks before trial begins.

Pursuant to the Trial Chamber’s order, The Prosecutor, Defence and Victims filed their submissions on the Conduct of Proceedings in the Kenyatta Case.

Modified Charges in the Ruto/Sang Case

The Trial Chamber released its decision on the Modified Charges Section in the DCC in the Ruto/Sang case. It is a shorter decision than the Kenyatta/Muthaura decision on the modified charges; the main issues that the Chamber dealt with were:

  1. The defence objections to the way in which Sang’s alleged liability was described in the Modified Charges
  2. The defence objections to the inclusion of an alleged attack on Kimumu.
  3. Various other objections regarding the temporal scope and wording of the Modified Charges

Generally, the Trial Chamber left the Prosecution’s version of the Modified charges untouched, barring a few changes to the language and requiring greater precision on the temporal scope of the charges.

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

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