The Prosecution and the lawyer for victims in the second Kenya case before the International Criminal Court (ICC) have said that they have no objection to judges postponing setting a trial date, a delay which defence lawyers have requested for.
The defense teams for Deputy Prime Minister Uhuru Muigai Kenyatta and former Head of Public Service Francis Kirimi Muthaura made the request last month, arguing it would be best to wait until an appeal they have filed challenging the ICC’s jurisdiction in their case is determined. The lawyers for Kenyatta and Muthaura argue that if the appeal is determined in their clients’ favor then it could that they will not stand trial, so there will be no need to set a start date.
The Office of the Prosecutor said in a statement on Wednesday that the Prosecution has no objection in Trial Chamber V delaying setting a trial date as long as the accused made a written commitment to attend trial whenever it will be scheduled. Morris Anyah, responding on behalf of the victims in the case against Kenyatta and Muthaura, said his clients do not oppose the request.
Pre-Trial Chamber II, in a majority decision, determined on January 23, 2012 that Kenyatta and Muthaura should stand trial on five counts of crimes against humanity committed during violence in which more than 1,000 Kenyans were killed between December 2007 and February 2008. The Pre-Trial Chamber also determined that in a separate case former Cabinet Minister William Samoei Ruto and radio journalist Joshua arap Sang should face trial on three counts of crimes against humanity committed during the same period in Kenya.
The ICC Prosecution noted in its Wednesday statement that there have been public demands in Kenya that the trial should be concluded before the Kenyan elections, which are scheduled for March 4, 2013. The Prosecution doubts that is possible even if the trials started immediately, adding it is up to Kenyans to determine who will be a presidential candidate and who will be elected the country’s leader.
These public demands are fuelled in part because Kenyatta and Ruto are aspiring presidential candidates. There has been debate whether they can contest for high office while facing charges of crimes against humanity given the integrity and ethics requirements for leaders set out in Kenya’s constitution. In an effort to settle the question, some citizens have filed a petition before the High Court requesting it to determine the eligibility of the two individuals. The Chief Justice is yet to constitute a three-person bench to hear the matter.
In addition to supporting the postponement of setting a trial date, the Prosecution said it has submitted to the Trial Chamber a request that the identities of its witnesses be revealed to the defense only once their appeal concerning the ICC’s jurisdiction is resolved for security reasons. The Prosecution statement did not refer to any specific cases. However, earlier this year a Ugandan, who was once involved in peace talks between a Ugandan rebel group and the government, claimed at a news conference in the Kenyan capital, Nairobi, that he had managed to track down one of the Prosecution’s anonymous witnesses in the Kenya cases. The Ugandan named the person who he claimed was the anonymous witness but never offered conclusive evidence that the individual was a prosecution witness.
In the Wednesday statement, the Prosecution said it is investigating cases of witness tampering and exposure of perceived witnesses.
Interestingly, lawyers for Ruto and Sang have not filed any requests for Trial Chamber V to delay setting a trial date in their case. The Trial Chamber has called the different legal teams for a meeting next month to determine a trial date, when and how parties are going to disclose their evidence to each other, and other matters.