Recent Court Documents in the 2 ICC Kenya Cases 5 May 2013

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.

Consequences of Our Choices

I’m back and refreshed after an election season in which we surprised everyone, including ourselves, by respecting the decisions of our institutions.

It was touch and go when activists like Dennis Itumbi were orchestrating campaigns against the Supreme Court alleging that it was compromised by the CJ’s supposed closeness with Raila Odinga. Itumbi, some may recall, was arrested late last year on the suspicion that he was witness tampering (hacking into email accounts of protected witnesses in the Kenyatta/Muthaura case). After his release, he made a complaint against the ICC prosecutor which the Trial Chamber dismissed on the basis that the Prosecutor had no role in his arrest.

On to recent news from the ICC cases: the pre-trial chamber has approved an addition to the charges facing Kenyatta. Judge Trendafilova allowed the Prosecutor to re-insert an allegation that victims were shot dead Nakuru and Naivasha in the course of the attacks against civilians. The guns identified by the Prosecutor are AK47s and G-3 rifles- both types are common in Kenya and are standard issue amongst Police and Paramilitary formations. The Judge further stated that after confirmation of charges, the Prosecutor could only amend charges with the consent of the court. No consent is ordinarily required prior to confirmation. According to the court, the Prosecutor was required to provide evidence supporting her allegation- this she did through four witness statements. Judge Trendafilova, after analysing the statements and party submissions on the matter ruled that this was sufficient to permit the Prosecutor to amend the charges.

The ruling also carried a blunt warning to the Prosecutor that in carrying out investigations after Confirmation of charges, she must bear in mind that the Court will require an explanation from her as to why she was unable to produce the evidence prior to confirmation. Any such evidence will be analysed to ensure that it is necessary to establish the truth, or that it is justified in ‘certain circumstances’.

So why was the Prosecutor unable to produce this evidence earlier at the confirmation proceedings? The answer, according to Judge Trendafilova’s ruling, is troubling. The Judge was persuaded by the Prosecutor’s explanation that investigations were hampered by threats to witnesses, lack of cooperation, security concerns and difficulty in approaching insider witnesses. If this was the operating environment for the Prosecutor prior to these elections, it is likely to get worse now that Uhuruto are in charge of the nation’s executive organs. Despite the institutional independence ingrained in our constitution, old habits of knee-jerk loyalty to State House die hard. The Prosecutor is unlikely to get much more cooperation out of Kenya’s security and intelligence apparatus; though it would be a pleasant surprise if she did.

And with unrelenting pressure on her witnesses, it’s understandable why Fatou Bensouda calls these the hardest cases she is undertaking at the ICC.

An International Crimes Division for the Kenyan High Court?

Chief Justice Willy Mutunga has recently revealed that Kenya is at the advanced stages of setting up an International Crimes Division of the High Court.

According to the CJ, the new division may eventually be utilised in the fight against crimes against humanity, drug trafficking, trafficking in humans and body parts, money laundering, counterfeit goods, corruption, piracy and terrorism.

This is a promising step: international crimes, while adhering to many of the doctrines and principles that will be familiar to domestic criminal courts, have certain aspects that often require international law expertise that generalist judges will lack. These aspects include extradition, diplomatic immunity, head of state immunity and sovereign immunity, treaty interpretation, knowledge and application of customary law, application of different modes of liability (co-perpetration, joint criminal enterprise) and experience with regimes of mutual legal assistance. Assuming that the new division will be made up of international criminal lawyers with domestic law experience, then this should help ensure that poor decisions such as the Al-Bashir Arrest warrant case (I applaud the result, not the reasoning of the judge) and the Re Hashi piracy case become things of the past.

The creation of such a division has an advantage over international tribunals because it is locally based, victims will find it easier to participate in proceedings, witnesses will be close by and costs of transport and logistics will probably be lower (as compared to international travel to the Hague or Arusha). The other side of the coin is that it is easier to bribe or threaten those involved with international cases. And the threat of interference in international cases is necessarily higher given the weight of the crimes and their penalties. Witness protection and security against both physical and cyber attacks is therefore paramount.

The creation of the new division should be accompanied with another note of caution. Uganda tried something similar through the creation of a division to try international crimes crimes, particularly those committed during the war with the Lord’s Resistance Army.

 

It’s hardly been a ringing success. Controversy over the application of amnesty laws as well as delays have dogged the division since inception. In addition, there are rumours that the government is using the division as part of a carrot and stick approach to getting the LRA to sign a permanent peace deal. Given the Ugandan government’s hot and cold approach to the ICC proceedings against members of the LRA, these rumours do not seem far fetched.

Our new constitution may have removed the immunity of the President and Deputy President with respect to international crimes, but it does not prohibit amnesty laws.

So I look forward to the new division, but I hope it is well integrated with the Witness Protection Unit and the organs of state (in the AG’s chambers, DPP’s office etc.) that concurrently deal with international crimes. I also hope that the legal regime under which it operates is also strengthened so that it can effectively prosecute international crimes.