Tag Archives: Video-link

Recent Court Documents in the 2 ICC Kenya Cases 9 October 2013

The Ruto/Sang Trial Chamber ordered that the victim applications of several OTP witnesses (which make them dual-status witnesses) should be confidentially disclosed to the parties.

The Trial Chamber also allowed the Common Legal Representative to prepare Witness 526- who recently completed her testimony- for purposes of examining her in court regarding victims’ interests. The CLR made this request because Witness 526 has a special status as both a victim and a witness

The Kenyatta defence applied for their client to be excused from continuous attendance at his trial. The application provides for Kenyatta’s physical presence at the opening and closing of the trial; but in any other situation where the court requires his presence, he would appear via video-link.

The Trial Chamber V(B)- the Kenyatta trial chamber- allowed the Prosecutor to disclose a less redacted version of witness 232’s victim application.

The same Trial Chamber refused the defence request an adjournment of the trial in order to ‘develop’ software and technology that could be used to analyse data from mobile phone records.

The Prosecutor in the Kenyatta case sought permission to add 2 more witnesses to her case. This follows the withdrawal of witness 426. The two witnesses are referred to as P-066 (who will testify to the nature and extent of sexual violence in the context of the Kenyatta charges) and P-548 (a Mungiki insider testifying as to the alleged Mungiki link with Kenyatta, coordination and organisation of attacks).

The CLR asked the Court to grant the Prosecutor’s request to add witnesses.

The VPRS gave its fifth report on the status of victims in the Kenyatta case.


Recent Documents in the 2 ICC Kenya Cases 9 August 2013

The Trial Chamber decided to allow the Prosecutor further time to disclose translations of Audio-Visual material from Kalenjin to English. The Chamber noted that the OTP had a lack of qualified translators, though it felt that the Prosecutor should have anticipated this issue earlier. However, because the judges felt that there would be no prejudice to the defence, they allowed delayed disclosure, setting the final date for 16 July 2013.

Last year, the Sang defence had asked for an opportunity to give written submissions on the definition of an ‘organisational policy’ to commit an attack against a civilian population (one of the elements under Article 7 of the ICC Statute the Prosecutor must prove). The defence has now withdrawn that request– though they made it clear that they still considered the interpretation of ‘organisational policy’ to be an important matter for trial.

The Prosecutor agreed to provide the Sang defence with 5 victims’ application forms with lesser redactions. These are the forms that victims prepare in order to seek permission to participate in the ICC cases. The Sang defence requested these applications because the five victims could also be trial witnesses. The Prosecutor applied to the Trial Chamber to allow the lesser redactions, the Sang Defence supported this application, noting that the Common Legal Representative of the victims had consented to this application. The Sang defence however felt that the Prosecutor had not been diligent in her work as she only made the application several months after communication between the parties. But the Sang defence also admitted that without seeing the actual forms, it is difficult to point to any prejudice that has yet been suffered.

Ruto Permitted to Miss (Some) Court Sittings

Trial Chamber 5(a) has held that Ruto is excused from attending most court sittings during his trial. The majority (one judge dissented) emphasised that this decision was an exception to the general rule that the accused be continuously present at trial. The court demanded that he deposit a waiver of his right to be present (which he later did). This conditional excusal is further restricted by requirements for Ruto to be in court for:-

  1.  All opening statements in their entirety
  2. All closing statements in their entirety
  3. When victims present their views and concerns in person
  4. The entirety of judgement delivery
  5. The entirety of any sentencing, victim impact or reparation hearings
  6. Any other attendance the Court directs

How did the majority reason out their judgement? The judges read statute as a whole, looked at international law and drew inspiration from jurisprudence of various states to come to their conclusions. They agreed with Ruto that presence at one’s trial was a right under the ICC statute, and this right could be waived. But they also held that the right was attached to an accused’s duty to appear, a duty which the court could exceptionally waive at it’s discretion. This discretion could only be applied on a case by case basis having regard to what is ‘fair, just and reasonable’. This, the majority felt, was consistent with the principle of judicial control of proceedings. The dissenting judge felt there was no way in which the statutory provision (Article 63(1)) could be read as containing discretion as to the presence of the accused.

Interestingly, this discretion cuts both ways. It both allows the judges to waive the duty to appear and at the same time allows the judges to decide to proceed with the trial if the accused (who is not in custody) decides to abscond after promising to appear. The judges, however, made it clear that this did not apply to certain other accused who do not submit to the jurisdiction of the court and are not nationals of ICC state parties. Such accused could not be tried in their absence.

In this way, the judges tried to deal with the concerns that the accused Ruto might through wilful absence use his position as Deputy President to delay or frustrate the conduct of his trial, knowing there would be no power within Kenya to forcibly deliver him to the Hague (or wherever the court may conduct sittings in East Africa).

The test the judges set forth to determine whether to excuse the accused from continuous presence was whether there were ‘exceptional circumstances’ based upon ‘important functions’ of an ‘extraordinary dimension’ that the accused had to perform. In this case, they felt that Ruto satisfied this test as Deputy President.

This functional test is emphasised by the court several times; clearly the judges wanted to avoid the accusation made by the Legal Representative for Victims that allowing Ruto the waiver would violate the Rome Statute by showing undue favour to Ruto by virtue of his status as Deputy Head of State. The majority was at pains to point out that it was the ‘important’ and ‘demanding’ functions that he performed that informed their decisions, not ‘merely the gratification of the dignity of his own occupation of the office’.

The Judgement is, in my opinion a novel route for the ICC. In one stroke, the judges both spell out the right and duty to be present at trial, while also trying to ensure that the trials will proceed unimpeded, irrespective of the accused’s willingness to be present. There is, however, the troubling prospect of accused persons getting away with chutspah (loosely described as slaying one’s parents, then pleading orphanhood in mitigation). The court argued that there was nothing wrong with an accused (who’s not in custody) running for political office while awaiting trial so there was no wrong-doing that would create the conditions for chutspah. It’s still tough to understand why an accused (Ruto) who knew he was awaiting trial before the election and was warned that holding the post of Deputy President would affect his trial, his ability to perform his public duties, or both, could then argue after the election that the demands of being Deputy President are too great for him to be continuously present at trial. This could send a worrying message that confirms to alleged international criminals that if you face an ICC trial, a position near the top of the pyramid of power is the best spot from which to strike bargains with the court. This suspicion is, however, tempered by the court’s comments that the national majority [who elect an accused] cannot use democracy to avoid an inquiry into international crimes committed against a minority.

I may be wrong, but I read that paragraph of the decision as a subtle criticism of certain politicians (and at least one senior Kenyan Diplomat) who have been crowing that the legitimacy of the ICC trials ended with the announcement of the March 4 election results.

Ironically, it was Sang who brought up the original issue of allowing the accused to participate at trial via video link without being physically present. His counsel then about-turned and stated that Sang wanted to be present throughout his trial. So the person who raised the issue of his right to be absent will possibly be the only one of the three (Kenyatta’s application is still pending) who doesn’t benefit.

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

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law


Advancing the rule and role of law in Africa