The Pre-Trial Chamber II of the International Criminal Court (ICC), presided over by Justice Ekaterina Trendafilova held Status Conferences today in both cases having to do with the six suspects in the situation in Kenya.
The six suspects are charged for allegedly bearing responsibility for crimes committed during the violence that engulfed Kenyan after that country’s elections in 2007. On April 7 and 8, all six suspects made their initial appearance before ICC judges in The Hague. At the said initial appearences, today was set as the date for Status Conferences in both cases. The Presiding judge told the suspects at their initial appearences that there was no need for them to be physically present during the Status Conferences today and that representations by their respective lawyers will surfice.
At 9:30 Am today, the first Status Conference, dealing with the case against Members of Parliament William Samoei Ruto, Henry Kosge, and radio journalist Joseph Arap Sang was held. This was followed by second Status Conference at 11:30 Am for the case against Kenyan Deputy Prime Minister Uhuru Kenyata, Head of Public Service and Secretary to the Cabinet of Kenya Francis Karimi Muthaura, and Chief Executive of the Postal Corporation of Kenya Mohamed Hussein Ali.
The same issues were discussed at both Status Conferences.
For both Status Conferences, the Presiding Judge, Justice Trendafilova identified four issues that needed to be addressed:
1. An indication from all parties whether they intend to use live witnesses or witness statements at the confirmation hearings scheduled to commence in September this year.This includes the number of witnesses both the prosecution and defense intend to call, the number of witness statements each party intends to use, the approximate number of pages of said witness statements and whether there is an intention for the parties to disclose the full or summarized versions of the witness statements.
2. Materials in possession of the prosecution, including books, photographs and other material evidence which are subjection to inspection by the defense. The judge asked the prosecution to indicate whether they intend to make such materials available for the inspection by the defense.
3. An indication of whether all parties intend to seek protective measures for the witnesses who will testify at the confirmation hearings and whether any statements disclosed will be available in redacted form.
4. An indication of the overall amount of exculpatory evidence available to the prosecution which they intend to make available to the defense.
In the first case of Ruto, Kosgey and Sang, the parties responded to the above issues thus:
1. The prosecution indicated that they intend to call an estimated number of approximately 10 witnesses. The witness statements to be used by the prosecution will amount to 4700 pages and full statements of the witnesses will be provided to the defense.
The defense for Hon. Ruto indicated that the “confirmation process will be contested” and therefore “the Chamber can expect that there will be live witnesses.” Mr. Ruto’s defense said that until they have full dosclosure of the evidence from the prosecution, they would not know which areas of the prosecution case they will contest.
Mr. Ruto’s defense also said that they were not in a position today to say the number of witnesses they will use at the confirmation hearing but that “a minimum of about 15 oral witnesses seems in respect of this part of the case likely.” They could not indicate whether any written statements will be full or summarized versions.
The defense for Hon. Kosgey said that they were not conversant with the prosecution evidence at this stage and that once they know, they would investigate and determine how many witnesses they will call. They added, however, that they “shall definitely call witnesses in rebuttal” of the prosecution’s evidence.
The defense for Mr. Sang said that they intend to call 15 live witnesses and while they will disclose witness statements, they were not sure of how many pages they will be.
2. For materials in possession of the prosecution which must be inspected by the defense, the prosecution said that they have approximately 185 items including documents and these will be made available for inspection by the defense.
3. On the issue of protective measures for witnesses and whether any witness statements will be redacted, the prosecution indicated that materials to be disclosed in redacted form will amount to 606 documents and they have been calculated at 11,000 pages. The prosecution indicated that they have been working with the Victims and Witness Unit (VWU) of the court to ensure that protective measures are in place for witnesses.
The defense for Hon. Ruto indicated that they do not intend to use any protective measures for their witnesses and that statements will not be redacted before disclosure.
The defense for Hon. Kosgey said that they will only go for such protective measures if they are in line with the right of their client.
The defense for Mr. Sang said they may have to request for protective measures for some of witnesses and they will also seek redaction for some statements.
4. On the issue of exculpatory evidence, the prosecution indicated that they have had two documents which fall into this category and they have obtained consent from the source of the documents that they be provided to the suspects.
In the second case of Hon. Kenyatta, Mr. Muthaura and Mr. Ali, the judge identified the same issues discussed in the first case as agenda items for the Status Conference.
1. On the issue of whether there will be live witnesses at the confirmation hearings, the prosecution said that they intend to call 10 live witnesses, that they intend to provide full versions of the witness statements, subject to redaction measures and that they intend to rely on approximately 31,000 pages of witness statements.
The defense for Mr. Muthaura said that they intend to rigorously contest the prosecution evidence and that they will present witnesses but this will be subject to what is disclosed by the prosecution. “The defense intends to fire back, but in order to fire back, we need a target, and that requires disclosure,” Mr. Muthaura’s lawyer Karim Khan told the court.
The defense for Mr. Kenyatta said that while they will be challenging the confirmation hearing, they were unable at this stage to indicate the nature and structure of the materials they will rely on. This, they said will depend on what is disclosed by the prosecution.
The defense for Mr. Ali said that while they will be contesting the prosecution evidence, they were unable at this stage to indicate the details of how they want to do so without disclosure from the prosecution.
2. On the issue of materials in possession of the prosecution which must be inspected by the defense, the prosecution said that they will make these available to the defense and that said documents will amount to 219 documents of approximately 5046 pages.
Defense counsel for Mr. Muthaura emphacised the need to make an early disclosure of these materials in line with the rights of the suspects.
The defense for Mr. Kenyatta said that they want to inspect said documents now so as to see the nature of the prosecution’s case.
Mr. Ali’s defense also stressed the need for an urgent inspection of said documents as “the people of Kenya are all very anxious to know the evidence” against the suspects.
3. On the issue protective measures for witnesses and the redaction of witness statements, the prosecution has sought and continues to seek protective measures for their witnesses and that they intend to disclose approximately 542 documents of 9397 pages in redacted form to the defense.
The defense for Mr. Muthaura said that they have no intention at this stage to seek protective measures for witnesses.
The defense for Mr. Kenyatta said that they were concerned about the prosecution wanting to hide “behind protective measures” and this, he said, will not be the proper way of proceeding and that they would oppose any steps by the prosecution to do extensive redactions of statements by witnesses.
The defense for Mr. Ali said that they had practical difficulties in conducting investigations and that the prosecution needs to be more candid before the court in their disclosure obligations.
4. On the issue of exculpatory evidence, the prosecution indicated that they were in possession of one such exculpatory evidence and that they have received the necessary consent from the Kenyan government for it to be disclosed to the defense.
Defense lawyers for Mr. Kenyatta and Mr. Ali said that the prosecution has an obligation to investigate both inculpatory and exculpatory evidence and that the prosecution has not taken any steps to collect such exculpatory evidence.
Defense lawyers also expressed concerns about extra-judicial comments that are being made to the press about their clients by the Chief Prosecutor of the Court.
The presiding judge indicated the willingness of the Pre-Trial Chamber to address all the concerns of the parties and that some of these will be discussed in a subsequent Status Conference to take place some time in May.