International Criminal Court (ICC) trial judges will set a trial date for the Kenya cases before mid-July, an announcement that will have ramifications beyond the corridors of justice at The Hague.
Presiding Judge Kuniko Ozaki of Trial Chamber V announced the decision today after listening to the prosecution, defense, and victims’ lawyers make their submissions during a meeting to discuss a trial date and other preliminary matters ahead of hearings in the first Kenya case. Judge Ozaki said the trial chamber will issue its decision in writing before the court breaks for its summer recess, which starts on July 13.
The decision was in reference to the first Kenya case only as a similar meeting is set for Tuesday to discuss the details of the second Kenya case. However, the practice of the pre-trial, trial, and appeal chambers has been to issue simultaneously important decisions concerning both Kenya cases.
Defense lawyers said they preferred the trial of their clients, former Cabinet Minister William Samoei Ruto and radio journalist Joshua arap Sang, starts in March next year, the month Kenya’s general election is scheduled to be held. The prosecution said it had no objection as long as the accused persons gave a commitment in writing that they will attend court irrespective of the election’s outcome. Ruto’s and Sang’s lawyers said their clients would make such commitments. The lawyer for 326 victims said that her clients wish the trial could start as soon as possible because in Kenya delays in court are seen as indicators of cases being interfered with.
Ruto, who is charged with three counts of crimes against humanity, is aspiring to run for president and is already campaigning for his party’s nomination. Lawyers for Sang, who is also facing three counts of crimes against humanity, have stated in written submissions filed on May 28 that they anticipated that any witnesses they would call are already involved in the campaigns and would not be available before the polls are held.
The prosecution also said that it expected to complete disclosure of incriminatory evidence to the defense teams of Ruto and Sang by the first quarter of 2013, something Ozaki said the trial judges had not expected.
“I have to confess that this time frame is not as early as we (Trial Chamber V) anticipated,” Judge Ozaki said.
Ruto and Sang are among four prominent Kenyans charged with crimes against humanity before the ICC for the violence that erupted after the controversial December 2007 presidential poll and nearly tore apart the country. More than 1,000 people died in that violence.
Judges of Trial Chamber V called the meeting to allow prosecutors and defense lawyers to discuss the details of how to exchange evidence. The meeting, or status conference as it is formally known, was also an opportunity for any party to issue notice of preliminary legal points they wanted to raise before the trial.
The main issue the public back home in Kenya is interested in is the trial date. Not only do the ICC cases represent the first time in Kenya’s history powerful and influential individuals are facing trial on such serious charges as crimes against humanity, but also two of the accused are presidential aspirants and the trials would have an impact on their campaigns as they will be obliged to attend hearings irrespective of their responsibilities back home. Their wish to run for president in Kenya is not without controversy. Some citizens have filed a case at the Kenyan High Court, challenging their proposed candidacies on the grounds their running for public office violates the constitution’s standards for leadership.
Defense lawyers told the judges that they had no objection to the prosecution’s proposal to disclose only 60 days to trial, the identity of anonymous witnesses under the court’s protection. They also said that they had no objection to the prosecution’s proposal to disclose only 30 days to trial the identity of witnesses who are not under the court’s protection, but whom the prosecution feels face a security risk and therefore need to remain anonymous. They, however, requested that the prosecution ask those witnesses whether they had no objection to their identities being disclosed earlier, perhaps 45 days ahead of trial.
Defense lawyers also stated that they did not object to the prosecution making redactions to incriminatory documents it would disclose to them, so long as the judges were involved in the redaction process to ensure they were warranted and fair. Judge Ozaki ordered the two parties to find a common ground on redactions and make a submission to the judges by July 3.
The issue of the mode of liability also came up, with the prosecution issuing notice that it wanted to make an additional description of what it determined to be Ruto’s allegedly individual criminal liability. The charges against him allege he is an indirect co-perpetrator. The prosecution said it was not presenting additional facts from the ones argued during the pre-trial phase. Judge Ozaki said the judges will issue a decision later on the matter.
The prosecution also said that it will need one month to file an amended document containing the charges.
Judge Ozaki said that the trial chamber would make a ruling on the lawyer for victims later. The lawyer was only hired to represent victims during the pre-trial phase but because that has overlapped with the trial phase, a disagreement has arisen between her and the registrar over whether she needs to travel to Kenya to meet her clients and whether her staff should be remunerated during this transition period.