Lawyers disagree on preferred trial date for second Kenya case

Preferences for a trial date became a contested subject during a housekeeping meeting ahead of the trial of the second Kenya case at the International Criminal Court (ICC).

The defense team of Deputy Prime Minister Uhuru Muigai Kenyatta grudgingly agreed with a prosecution proposal that the trial date be synchronized with that of the first Kenya case. During a meeting to discuss the schedule of that case on Monday, the defense and prosecution were in agreement that their trial should start in March next year, after the Kenyan election. Trial Chamber V, which called the meetings this week, will be adjudicating both cases.

The defense for the other accused in the second Kenya case, former Public Service chief Francis Kirimi Muthaura, objected to any attempts at synchronizing the two cases. Karim Khan, speaking on behalf of his client, told the judges of Trial Chamber V they preferred the trial starts within two months’ time, and on the outside in September.

The lawyer for the victims, Morris Anyah, told the judges that the sooner the trial starts, the better. However, he said, his clients would be happy if the trial started within a year of the date of the pre-trial chamber’s decision on the accuseds’ application for leave to appeal the confirmation of charges. That decision was made on March 9 this year.

The prosecution told the judges that they anticipate completing disclosing their evidence to the defense teams by the end of this year but wanted the trial held at the same time as the first Kenya case.

“We, as much as possible, want to avoid a situation where tensions could arise, where one case is moving faster than the other or one has started and the other hasn’t,” said Adesola Adeboyejo, on behalf of the prosecution.

Presiding Judge Kuniko Ozaki said Trial Chamber V will issue its decision on a trial date before the court breaks for the summer recess, which starts July 13.

Kenyatta and Muthaura have been charged with five counts of crimes against humanity for violence that took place in Kenya’s Central Rift region. This region and other parts of the country became consumed by violence when Kenya nearly imploded after controversial December 2007 presidential polls. More than 1,000 people were killed when the violence stopped after two months.

Today’s meeting, or status conference as it is formally called, was a complete contrast to the one held on Monday for the parties involved in the first Kenya case.

On Monday, it was very business-like with all participants being brief and generally in agreement on most points. Where there were differences, participants seemed happy to go into length about them at inter-parties meetings ordered by the judges or in written submissions to be filed later. Monday’s status conference ended ahead of its scheduled time.

In contrast, Tuesday’s status conference nearly exceeded its allotted time in part because Khan made lengthy arguments on different points. In particular, he repeatedly asked the court for an interim order barring the prosecution from contacting any defense witnesses until the judges determine the parameters within which the prosecution can contact such witnesses. Before making his first request for an interim order, Khan had explained to the judges that the prosecution had contacted a defense witness without his legal team’s knowledge and against the practice that has been used in other international criminal tribunals.

The judges declined to issue any interim order, only asking the prosecution to voluntarily refrain from contacting defense witnesses until they make a decision on how future contacts will be conducted. They gave Khan 48 hours to elaborate his concerns in writing and the prosecution another 48 hours to respond to enable them make a decision.

Another issue Khan raised was the fact that some Kenyan newspapers have reported interviewing what they claim are protected prosecution witnesses and yet the prosecution did not want to disclose their identities to the defense. Khan argued that defense lawyers are bound by ICC codes and rules to keep confidential protected witnesses’ identities, “and yet these very same witnesses are willing to speak to journalists who are not bound by any code at all.”

He also talked at length about Makau Mutua, a columnist for Kenya’s Sunday Nation newspaper and also a law professor at State University of New York at Buffalo. Khan asked whether there are any links between Mutua and the prosecutor’s office and whether he was privy to information about a particular protected prosecution witness. Khan said he was raising the issue because he said Mutua had revealed in his column details of someone who he described as a protected prosecution witness. The chamber ordered him to write to the prosecution and the Victims and Witnesses Unit (VWU) on the issue.

Earlier, the prosecution gave notice that it wishes to apply to be allowed to add charges to the existing ones as well as recharacterize the mode of liability of both accused. The prosecution said this was necessitated by the decision of the pre-trial chamber when it confirmed the charges. The judges gave the prosecution until July 3 to file its applications, which should not be more than 30 pages. The defense and victims’ lawyers will have 21 days to respond in written submissions that should not exceed 30 pages.