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 visit to by the ICC Prosecutor, Fatou Bensouda, is winding down. So far here are the key highlights
- A plea for evidence– the prosecutor, in a her press statement mentioned the countless requests for cooperation sent to African countries and to which the relevant governments have successfully complied. So it speaks volumes that she had to come personally to speak to the Kenya government, much like her predecessor Ocampo. Clearly the relationship of cooperation between the court and the Kenya government is still touch-and-go. I’ll post later on the type of evidence the Office of the Prosecutor generally seeks and whether the cooperation structure under the Rome Statute is sufficient.
- A visit to some of the hotspots– the Prosecutor was keen to highlight her visit to IDPs and Victims of violence. This is important to for victims seeking justice to put a human face to the Hague process. Equally, the prosecutor will have the human faces of the countless victims fixed in her mind when she (or a member of her office) goes to make the opening statement in April next year. But the visit is more than meeting with people. By visiting places like Kiambaa church, the prosecutor and her team will get a sense of scale, distance and context in connection to the cases. Its one thing to see a place on a map, but to actually see the roads, shopping centres, abandoned houses, re-construction, disputed lands and farms and to speak to those who actually live in the area will doubtless assist both Prosecution and Defence in preparation for the trial.
- Witness protection– her office has been vocal about attempts to interfere with witnesses, so a briefing from the director of the Witness Protection Agency will be interesting. Although her predecessor mentioned that the ICC had already re-located and put in place protective measures for potential witnesses, the WPA is still important. Don’t forget that the two trials are only the accused that the Prosecutor is pursuing so far. What if fresh evidence implicating other or different suspects arises for the same situation? The prosecutor would have to go through further procedure to get new cases admitted to court; in the meantime, any potential witnesses might still need the WPA until the ICC’s VWU is able to act.