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 Court Documents in the 2 ICC Kenya Cases 9 September 2013

The prosecutor filed additional submissions on the conduct of the trial. She stated that she would raise any objections about questioning witnesses on a case by case basis.

She also asked to be permitted, after the Defence case, to rebut, explain or counteract any evidence given by the Defence which she could not have reasonably anticipated and which relates to a ‘significant issue’ in the case. She accepted that if there is such a rebuttal, the Defence should similarly be permitted to rebut the rebuttal.

The Prosecutor also wanted the Court to allow the party challenging a witness (the opposing party) to put their case to the witness. For example if the opposing party thinks the witness is untruthful, it should be allowed to confront the witness with the allegation to save time on having to call back the witness later to answer questions that could have been asked at the earlier hearing.

The Prosecutor also informed the Trial Chamber that if a witness turns hostile (becomes uncooperative to the party calling him or her), or changes their tune to favour the opposing party, the calling party should be allowed to challenge the hostile witness with his or her prior recorded statements. This is potentially a key battleground in this trial given the various media reports of witnesses abruptly changing or withdrawing their support from the OTP (and ICC in general).

The Prosecutor also reminded the court that it has requested notice that the form of individual criminal responsibility alleged against William Ruto may change during the trial.

The Sang Defence took issue with the 4^th Report of the VPRS on the status of participating victims. The Defence feels the report is deficient because it does not mention the 93 victims who allegedly withdrew from the ICC proceedings [link]. They feel that the court should want to be clear on exactly how many victims are still participating. Furthermore, the Common Legal Representative is restrained to ask only questions at trial that touch on the interests of the victims, it is in the defence’s interest to know which pool of victims the CLR is representing. Sang’s defence want an accurate tally of the remaining participating victims and for the VPRS to give a report on the authenticity of the claim of 93 victims withdrawing.

Recent Court Documents in the 2 ICC Kenya Cases 09 February 2013

The Kenyatta/Muthaura defence teams have demanded that the Prosecutor produce a list of the lawyers who will be trying the case, and whether they belong to any national bar association and are in good standing with that bar. They also want a Prosecution code of ethics instituted by the Trial Chamber. The defence feels such a Code is important in order to regulate Prosecution investigations and dealings with witnesses, and encourage transparency in the trial proceedings. All Defence council appearing at the ICC must strictly adhere to the Code of Professional Conduct. This Code does not legally apply directly to the Prosecution.

The Prosecutor replied to the application by stating that neither a list of her lawyers nor information as to their ‘good standing’ before national bars would be helpful in ensuring ethical behaviour with respect to witnesses, since there is already a Witness Preparation protocol in place and avenues to monitor witness preparation as well as seek redress for violations of the protocol. She also questions whether a single trial chamber can institute a code of conduct for all  prosecuting lawyers in all cases before the ICC. The Prosecutor further points out that any misconduct by a prosecuting lawyer against the administration of justice in the case is adequately dealt with by sanctions under the Statute.

The VPRS filed its first periodic report on the Status of its activities, the Victims in the Kenya cases, and the activities of the Common Legal Representative. The VPRS states that it will be mapping victims, reviewing applications, training intermediaries and setting up a database of victims. During a November visit to Kenya, the VPRS officials travelled to Nakuru, Kakamega and Kisumu (this particular report is solely for the Kenyatta/Muthaura case). Some of the worries that victims expressed included whether only victims in this particular case can benefit from reparations, ensuring intermediaries are well trained, and ensuring the registration of genuine victims only.

In relation to the Sang/Ruto Case, the VPRS found similar issues; these particular victims met with the VPRS in Nakuru, Eldoret, Lugari, Turbo and Siaya. Victims were also concerned about tensions before the coming elections.

The Prosecutor in the Kenyatta/Muthaura case has applied to amend the Document Containing Charges (what we Kenyans call the Charge Sheet). I previously reported that the Trial Chamber ordered the Prosecutor to remove an allegation in the DCC that 6 people were shot dead in Naivasha. The prosecutor subsequently received evidence that shooting deaths did occur in the context of the attacks. She now wants to reinsert this allegation into the DCC without the need for additional hearings.

The Pre-Trial Chamber (single judge ruling) has asked for observations on the above request to amend. The rules require that the amendment request be addressed to the Pre-Trial Chamber rather than the Trial Chamber. One issue that concerns the Judge is whether, given that the OTP is supposed to have largely completed investigations by the Confirmations stage, it is appropriate for new evidence to be admitted and the DCC amended. The Chamber also wants clearer and fuller information and witness statements from the Prosecutor

Fergal Gaynor, the Common Legal Representative for Victims in the Kenyatta/Muthaura Case submitted his observations on the application to amend. Although not opposing the application, he argues that the victims he spoke to are worried about the delays in the case that may result from this amendment. 4 have already died, according to Gaynor, some from medical/psychological effects of the PEV. Therefore, the victims wish to see ‘justice in their lifetime’.

The Kenyatta/Muthaura defence teams also submitted their observations. They feel that there is no reason why the OTP could not collect this evidence prior to confirmation of charges- therefore Prosecutor is abusing the latitude to submit new evidence prior to trial. They also feel that the prolonged publicity of the case in Kenya has now tainted the witness pool, therefore the court should be careful admitting new witnesses. The defence teams close by complaining again about the failure of the OTP to diligently investigate and to clearly ‘solidify’ the case; instead adding new witnesses and new allegations. They worry that the time to trial is too short to investigate the new statements to be produced by the OTP.

Update 18 February 2013: The Prosecutor submitted her observations about the conduct of her investigations, in which she disagreed with the Pre-Trial chamber as to the scope of her obligations with respect to post-confirmation investigations. The Prosecutor believes that only questions for the Pre-Trial Chamber are the sufficiency of evidence to support the amendment and any undue prejudice it may cause the defence at this stage- not whether and to what her office continued investigations after the confirmation of charges.