The court clarified the rules it had set for contact with witnesses- the Witness Preparation Decision and Witness Preparation Protocol- by stating that any contact between a party and its witness less than 24 hours before testimony had to be ‘appropriate in the circumstances’ and with ‘due regard to professional responsibility’. Substantive witness preparation should have been completed before that 24 hour period. Once testimony begins, the only contact between parties and their witnesses will be at the Court Room, unless otherwise authorised by the court. The Victims and Witness Unit will handle any welfare and logistics for witnesses.
Karim Khan, Francis Muthaura’s lead lawyer is now co-lead counsel for William Ruto. His colleagues in the re-shuffled team are David Hooper and Kioko Kilukumi. In some of the filings, including the one below, I notice that Khan is designated as ‘lead counsel’, which might cause some confusion as to who is in charge of the team. While having co-leaders in a team of lawyers is known to happen, it can also lead to lack of coordination: there’s a quote I recall (attributed to a prosecutor in the OJ Simpson trial) to the effect that ‘co-lead counsel usually means no lead counsel’.
In addition to asking the court for Ruto’s presence via video-link and asking the court to permit him not to be continually present at trial, William Ruto’s defence team now ask the Trial Chamber to allow Ruto to waive his right to be present at trial. Under this application, Ruto would then only need to appear for opening and closing arguments, at the request of the Court, at any hearing he ‘chooses to attend’ and for judgement.
The VWU asked the Trial Chamber to clarify the witness protocol with regards to contact between the Parties and the witnesses that they intend to call. Link to the Ruto/Sang request here; link to the Kenyatta/Muthaura request here.
The Registry filed observations in the Ruto/Sang case on the request to shift the trial venue to East Africa. The observations are much the same as those that the registry made in the Kenyatta/Muthaura case, which I blogged about earlier. The Prosecutor also made her observations on this issue (largely repeating the issues of concern in her Kenyatta/Muthaura submissions.)
The Defence teams replied to the Prosecution Observations on the Conduct of it’s investigations. This matter arises from the Prosecutor’s application to amend the DCC to include the allegation that some victims of PEV were shot dead. The defence teams argue that Prosecution investigations were unnecessarily protrated and wholly insufficient. They ask the court not to allow any new evidence to support allegations excluded by the Pre-trial chamber as this may create a precedent for the Prosecutor to begin a case with inadequate evidence, hoping once the court confirms the case to continue with investigations up until trial. The result, they feel, will be a continued erosion of defendants’ rights
This, in fact is what the defence teams allege has already occurred in the Kenya cases. They claim that the Prosecutor disclosed a fraction of its evidence for confirmation purposes and brought a completely different case to the upcoming trial. A final point in the defence submissions is the argument that allowing new evidence on the factual allegations will be unjust as the defence has little time before trial to investigate the proposed witness testimony. The defence closes by asking for any decision on this amendment matter to be delayed until the hearing of its application to have the case referred back to the Pre-Trial Chamber.
In the same case, the Trial Chamber rejected the Defence application for leave to appeal the decision on witness preparation. The defence worried that the witness preparation decision was impractical and would prejudice the defence in their preparation for trial. The Trial Chamber felt that the 3 issues on which the defence sought to appeal failed to present ‘identifiable issues’ for a decision or amounted to mere disagreements with the Trial Chamber.