In the second Kenya case before the International Criminal Court (ICC), each suspect will be pursuing an independent defense strategy during the confirmation of charges hearings scheduled to begin on September 21, 2011. This is in contrast with the first case where two of the suspects clearly chose to follow a common defense strategy.
The lawyers for Francis Kirimi Muthaura, the Secretary to the Cabinet and Head of Public Service, recognize that the aim of the confirmation of charges hearings is to test whether the prosecution has sufficient evidence to warrant a trial, and therefore the defense has the easier task, in a manner of speaking. In short they are aware that the hearings are not a mini-trial. However, they are also aware that while Pre-Trial Chamber II will take time to decide the legal merits of the prosecution, the Kenyan public will also be watching and make up its mind long before the judges announce their decision.
Most Kenyan television stations are running live broadcasts of the hearings, either in full or in part. Generally, the ICC proceedings have taken over the afternoon programming, with only the religious television channels not broadcasting the hearings.
It is with this in mind Muthaura’s lawyers have asked the chamber to be flexible and allow them to name witnesses who have recorded statements in favor of Muthaura, especially where they have given consent for their names to be made public.
“The Defence is strongly of the view that the nature of the Defence witnesses and the positions they occupy or have occupied, will help ensure that facts are understood fully by the court, those in the gallery and the public at large – not least by the citizens of Kenya who have the most immediate right to the truth,” said Muthaura’s lawyers, giving their views in a filing to the court on Sunday on how they would want the upcoming confirmation of charges hearings conducted.
“The Defence emphasises that if the public only hear testimony as being attributed to anonymous Defence witnesses, or by Defence witnesses identified by pseudonym – especially in circumstances where the witnesses are well known public figures of stature and regard, they will not be able to properly follow or understand the import of the evidence being presented on behalf of Ambassador Muthaura. This is made even more acute in circumstances when such evidence is juxtaposed to the Prosecution anonymous witnesses,” said Muthaura’s lawyers.
The legal teams of the other two suspects have not made such arguments, suggesting that appealing for public sympathy is not key to their strategy. A glimpse of their strategy is also contained in documents filed with the court last week in response to a request from Judge Ekaterina Trendafilova. She has been designated as the Single Judge who is handling matters that arise during the pre-trial process.
The other two suspects are Deputy Prime Minister and Finance Minister Uhuru Muigai Kenyatta and former police chief Mohammed Hussein Ali. The ICC Prosecutor wants each of the three charged with five counts of crimes against humanity.
Whether their strategy will focus on purely legal arguments, painting the case as a political one, or a mix of the two, all the three defense teams agree on a few things. They will argue the cases against their clients do not meet the threshold of crimes against humanity and therefore the ICC should not be involved in the Kenya situation. This is the question of jurisdiction.
All defense teams have stated they will present two witnesses to testify in support of their clients. The prosecutor, just like in the hearings of the first Kenya case, will not be presenting any witnesses. He will just be referring to their statements as he lays out his evidence. Pre-Trial Chamber II has advised all the parties involved that though it is their right to call witnesses, they should keep in mind the nature of a confirmation of charges hearing and consider only referring to witness statement in order to save on time. This is why when the defense teams applied to have a total of 24 witnesses, Judge Trendafilova ordered that they will be allowed only two witnesses each.
Kenyatta’s lawyers have applied to have the identity of their witnesses protected.
Whether in the end all the witnesses will testify depends on the strategy each team will employ. In the first Kenya case, all the three defense teams had indicated they will call witnesses, but as the hearings proceeded, the counsel for one suspect decided there was no need for witnesses. That legal team was confident the prosecutor did not have sufficient grounds for their client to go to trial and went ahead to challenge the prosecutor’s case on purely legal grounds.
Lawyers for Ali and Kenyatta will also be arguing that irrespective of the magnitude of the crimes committed in Kenya during the violence that nearly tore up the country between December 2007 and February 2008, the Kenyan criminal justice system should be handling any trials. This is the issue of the admissibility of the cases before the ICC. On August 30, the Appeals Chamber decided the cases were admissible following a challenge by the Kenyan government. However, this decision did not bar any of the suspects making a similar challenge.
There is certainly more that the three defense teams have prepared, some which are contained in confidential documents filed to the judges. As the hearings proceed, their legal strategy will become clearer.
The confirmation of charges hearings in the first Kenya case are due to conclude by September 12. The hearings for the case against Ali, Kenyatta, and Muthaura will run from September 21 to October 4, 2011.