Tag Archives: Uhuru Kenyatta

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 19 September 2013

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.

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.

Anti-Hague Escapades Abound

As the trials edge closer, the Anti-Hague Circus is back in town; this time with twin ringmasters Aden Duale, the National Assembly Majority Leader and Kithure Kindiki, the Senate Majority Leader. Both predictably arrive with selective memories about how the ICC became involved in Africa and whether withdrawal from the Hague will actually protect the political class from further intrusion by these pesky International Tribunals. The fact that Kithure Kindiki is also a lawyer for one of the accused makes the awkward situation even worse- the image of the political class reflexively protecting its own looms over all.

Parliament is being recalled (with sitting allowances at public expense) to discuss the ICC, while over 70 MPs are allegedly preparing to accompany the Deputy President (at public expense) on his first court appearance. The reason the public expense is so important is because one of the accused assured the nation months ago that the ICC was a personal challenge for himself.

Yet the ‘personal challenge’ is taking up public time and money that MPs could be using to address immediate matters of public importance- such as the painful hike in the cost of living and the price of milk, both of which are having grave effects upon Kenyan households. Not to mention the recent series of strikes running through the public sector.

The Kenyan courts will also be engaged with yet another ‘urgent’ attempt to prevent the ICC trials of Kenyatta and Ruto- everyone forgets Sang- from proceeding. The petitioners, the National Conservative Forum(??) are arguing that a constitutional crisis and instability will ensue if both the President and Deputy President leave for the Hague trials at the same time.  The Petitioners therefore want the High Court to prevent the President and Deputy President from travelling to the Netherlands.The fact that warnings of such constitutional and administrative problems were given to Ruto and Kenyatta before they chose to run for office does not seem to concern the Petitioners. So far the High Court has merely directed that all parties be served with the application.

 

An earlier petition- the 2010 case of Joseph K Gathungu vs The Attorney General and Others- attempted to block the ICC from allegedly breaching Kenya’s sovereignty by investigating the 2007/08 Post Election Violence and prosecuting Kenyans found to be connected with those events. The petition was thrown out. That time, the petitioners attempted to justify their argument on the basis that the new constitution would cure all ills and so the ICC’s services were no longer necessary- the judge disagreed, pointing out that the same constitution also made the ICC treaty part of the law of Kenya and the procedure under the Rome Statute was for the ICC- not local courts- to determined if it had jurisdiction in the Kenya situation. Kenya, said the judge, was a member of the community of nations and under an obligation to observe international agreements it ratified. The new constitution did not change that- if anything it strengthened the ties binding Kenya to international law.

 

Nowadays, the anti-Hague brigade, having been thwarted in their argument that the ICC breaches Kenyan sovereignty, tend to complain that the March 4 elections were a referendum on the ICC and since the ICC ‘lost’, the trials must stop.

 

Indeed tone of this latest petition by the National Conservatives is eerily similar to a shrill letter by Kenya’s Permanent Representative to the UN. The letter was leaked earlier this year; it warned the UN Security Council that Kenya risked a violent crisis- that would threaten the region- if the Hague trials were allowed to proceed. It also implied that the March 4 election made the ICC trials moot since Kenyans had passed ‘judgement’ through the ballot box.

Now it seems that, having failed to convince the international community (bar friendly local dictatorships) to support the anti-Hague cause through the ‘threat to peace and security’ sledgehammer, the accused’s associates will bludgeon Kenya with the message that national security and constitutional authority is under threat. This questionable foundation would then allow the accused to stand up and defy the Hague, justifying this impunity as a higher calling ‘for the good of the nation’.

There is a small cause for concern because much of the world is pre-occupied with the chemical weapons of Syria. Defiance of the ICC by Kenya may only register as a blip in the radar if military action in the Middle-East is the focus of global attention. Of course, the accused themselves are adamant that they will observe their obligations to the ICC to the letter.

Let’s stay tuned for the next visit by the circus…

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

The fourth periodic report on the status of the victims in the Kenyatta case was submitted. In it, the CLR gave a brief summary of the situation of the victims in the run-up to the upcoming trial. The desperate situation and dire poverty of the victims stands out. They also carry great hope- perhaps excessive hope- in the ability of the Trust Fund for Victims to assist them in bettering their lives. But a number of victims also worried that the general security situation Kenya as the ICC trials get started. A lack of of clarity about  the status of the case was causing others to lose interest in the ICC altogether.

The Kenyatta Case Trial Chamber (Chamber V(B)) asked the participants to give fresh views on the question of where the court should sit. This was partly due to the fact that it was Francis Muthaura who filed the initial application seeking the change of venue. Now that he is no longer a part of the case, his application, according to the court, is no longer valid and the process had to be re-started. The second reason for seeking fresh views was that the Presidential Elections were held while Muthaura’s application was pending. This, and the fact that the accused now hold the highest offices in Kenya’s executive branch, were matters the court felt were directly relevant to the question of the venue of the trial.

In another matter related to Francis Muthaura, the court asked his former legal team for their views on whether the CLR should have access to certain confidential  or redacted filings whose access is controlled by the Defence. The Muthaura Defence team (some of whom now represent William Ruto) replied, opposing the CLR’s access to some filings- such as National Security Advisory Committee minutes and certain other material provided to Muthaura’s defence team by the Kenyan Government. Muthaura’s lawyers however accepted that the CLR could receive a few documents if access to them were deemed relevant to the personal interest of the victims he represents. The Defence also wants redactions on some the documents maintained.

TJRC, Mau Mau Regrets, Rhamu, Wagalla and Post-Election Violence Victims

There’s been a lot happening over the past few weeks relating to old and new atrocities in Kenya: here’s a short(ish) re-cap.

Beginning with old atrocities: just as Kenya celebrated its 50th year of independence, the Truth, Justice and Reconciliation Commission (TJRC) delivered its report– in several volumes- on human rights violations in Kenya between 1963 and 2008. There was the embarrassing spectacle of one of the persons adversely mentioned in the report (Bethwel Kiplagat, the TJRC Chairperson) ‘handing over’ that very report to another adversely mentioned person, Uhuru Kenyatta. It’s an image captured in the photograph within the following cartoon:

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Copyright Standard Group Ltd.

Kiplagat was mentioned in relation to the Wagalla massacre. His fellow commissioners were less than impressed by his testimony about how much he knew about the Massacre at a time when he was a powerful figure in government circles and whether he orchestrated a diplomatic cover-up in the aftermath. Kenyatta is individually mentioned with respect to Post-Election Violence; his broader family constitute virtually the entire volume on land injustices (OK, I exaggerate, but not by much); I doubt even the bookies would take odds on the chances of implementation of the major recommendations of the Commission. In addition, several commissioners took issue with ‘editorial changes’ that they allege were made following suggestions by senior government operatives to soften criticism of Jomo Kenyatta’s land-buying and resettlement practices.

And just to throw a joker into the draw, two individuals have gone to court to block the tabling of the TJRC report in Parliament (one of the steps required prior to implementation).

While on the subject of past injustices, the TJRC was always careful in its report to highlight that rights violations with impunity was one of the lessons that the post-independence government (and Moi’s government) learnt exceedingly well from the colonial administration. Thus, although the colonial period was not really a part of the TJRC mandate, land confiscation, massacres and discrimination during the settler period are well covered in the report. So perhaps it’s appropriate that Britain is bucking the impunity trend and offering an apology- of sorts- and compensation to former Mau Mau fighters detained and tortured in the 1950s.

Maybe this is to head off further costly and embarrassing legal battles that might have offered a legal precedent for other former colonial subjects to seek redress from London. Britain has steadfastly maintained that the obligations for actions by its colonies’ governments were assumed by the post-colonial states. The post-colonial states disagree. As far as the foreign minister’s statement went, it’s not quite the ‘sympathy and regret’ that the British Queen offered the Irish people for centuries of oppression and misrule

but it’s not too shabby either. Ultimately, however, it is for the victims themselves to judge whether the regret suffices.

Now to more recent atrocities, over 90 victims are allegedly pulling out from the ICC proceedings. From the report I’ve read (and I definitely don’t vouch for its accuracy), it seems that these are victims participating in the Ruto, Sang case. They have a number of grievances, one of which is that they feel that the Prosecutor and the ICC in general no longer serve their needs. There is also a suggestion that they were less than happy with the choice of legal representative (Wilfred Nderitu was appointed to represent them), having their own candidate in mind. Glancing at the 2nd VPRS report, only 120 victims were authorised to participate in this case (as at 25 March). So if it’s true that over 90 of them have pulled out, that would be a huge setback for victim participation. However, the news report is not clear if these victims were part of 120 currently participating, or the larger group of 300+ who took part in the confirmation proceedings.

It is also important to note that victims refusing to take part does not directly impact the trial process itself.

Finally, it seems that the flames of Rhamu are once again being fanned. 2 more people are dead, after dozens were killed nearly a month ago. Before that, there were deadly clashes just before the March election between members of the Garre and Degodia clans. One hopes that the security forces take this seriously, rather than dismissing it as ‘inter-clan’ skirmishes.

Previously, the government was going to deploy troops to carry out disarmament in the Mandera County (where Rhamu is located). Not much more has been heard about this idea; Someone may have told them that pursuant to Article 241(3)(c) of the Constitution, the National Assembly must approve the use of the Kenya Defence Forces in quelling any unrest or instability within the country. The government might of course argue that the KDF would only be providing ‘logistical support’ to police without being directly involved in operations.

The issue is sensitive because fighting between Ajuran and Degodia in the 1980s led to the disarmament operation in Wajir involving the Kenya Army that culminated in the Wagalla massacre of 1984. In the course of several days, hundreds (if not thousands) were raped, tortured or killed by soldiers. The wounds and memories remain painful from that day to this. No security official was arrested or prosecuted in the aftermath.

Interestingly, Deputy President Wiliam Ruto was the one who said the government would send troops to Rhamu to stop this latest surge in violence. According to the TJRC report (Vol 2A, paragraphs 543-544), back in 2000, when Ruto was Deputy Minister for Internal Security, he delivered a ministerial statement in a stormy Parliamentary debate on the Wagalla massacre in which he denied that thousands died- the figure he gave was 53. Furthermore, while he admitted that 13 were shot by troops, he explained to Parliament that the other 40 died from ‘excessive sunshine’.

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

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