Two Kenyan accused want ICC trial to start after Kenya polls

Kenya’s upcoming election has now become the subject of the International Criminal Court (ICC) with two of the accused persons in the Kenya cases asking judges to consider setting a trial date that falls after the presidential election.

Before this request, the potential clash between Kenya’s electoral schedule and the trials of four Kenyan accused before the ICC had only been the subject of political meetings in the country and public debate. This was inevitable as two of the accused are presidential aspirants in the election, which is scheduled for March 4, 2013. Although Kenya’s Independent Electoral and Boundaries Commission has set the March 4 date, there is a court case that is at the appeal stage in which judges are being asked to determine the country’s election date. This means the March date may be changed.

In March and April this year, two of the accused received approval from the elites of a few ethnic groups. At the meetings, which separately endorsed the presidential aspirations of Deputy Prime Minister Uhuru Muigai Kenyatta and former Cabinet Minister William Samoei Ruto, the groups also stated that they would petition the ICC to have the trials postponed until after Kenya’s elections, arguing that it was the fundamental right of every Kenyan to choose the leaders they want. Kenyatta is charged with five counts of crimes against humanity for violence in the country’s Central Rift region. Ruto is charged with three counts of crimes against humanity for violence in the country’s North Rift region.

It is not clear if the judges of Trial Chamber V will take into consideration the Kenyan election date in determining when to schedule the first day of the Kenya trials. About three weeks ago, the judges had asked for proposals on a trial date and how the prosecution and defense teams will exchange evidence, among other things. They set May 28 as the deadline for written submission for the status conference where all parties will sort out the preliminaries necessary to ensure a smooth trial. That status conferences will be held on June 11 and June 12.

All the accused in the first Kenya case have asked the trial date be set after March 4, 2013. One of them, former Cabinet Minister William Samoei Ruto, has argued through his lawyers that the elections present “an important and further opportunity” for him to continue reconciliation efforts he began after the violence that nearly tore Kenya apart in early 2008. The other accused in the first Kenya case, radio journalist Joshua arap Sang, has argued that his potential witnesses are already involved in political campaigns, so may not be available until after the polls.

Lawyers for Deputy Prime Minister Uhuru Muigai Kenyatta, who is one of the accused persons in the second Kenya case, have not referred to the election. Instead, they have argued that fixing a trial date depends on the time it will take the prosecution to disclose its evidence and how long it will take them to analyse that evidence to determine their defense strategy. Lawyers for the other accused in the second Kenya case, former Public Service chief Francis Kirimi Muthaura, have made similar arguments.

Outgoing ICC Prosecutor Luis Moreno-Ocampo leaves it to the judges’ discretion to determine the trial date. The Prosecutor, however, does offer an estimate for case one and case two of how long it will take the prosecution to argue its cases once trials begin: 12 months for each case.

Top of the ICC prosecution’s minds is security for witnesses. Ocampo is keen to retain the redactions to witness statements and other prosecution documents that applied during the pre-trial phase and was the great frustration of the defense lawyers. The prosecution wants those redactions and the anonymity of witnesses retained until 60 days, and in some cases 30 days, before trial. At that point the prosecution believes the defense can have full knowledge of the witnesses offering testimony against their clients without unnecessarily exposing those witnesses and or their families to security risks. The prosecution also believes that the proposed 60-day period, or 30-day period, is sufficient for the defense to investigate the witnesses and prepare its case.

All defense lawyers said that they were waiting for the prosecution’s submissions before knowing how they will exchange evidence with the prosecution. They have, however, expressed reservations about redacted materials and also wanted the prosecution to disclose sensitive information well in time to allow them prepare a defense. This is likely to be a source of tension between the defense and prosecution when they meet at the status conference next week.

The Prosecutor also said that he has presented for the trial judges’ eyes only submissions he made to the pre-trial chamber, highlighting several instances of witness interference. He said the prosecution is investigating activity, such as cases of individuals posting material online, claiming it reveals the identity of protected witnesses. Ocampo said his investigation is in the context of Article 70 of the Rome Statute, which established the ICC. Article 70 deals with offenses such as obstructing or interfering with witnesses. It states anyone found guilty faces a sentence of not more than five years, or a fine.

The status conference for the first Kenya case will be on June 11. The following day will be the status conference for the second Kenya case. The trial judges will not immediately announce a trial date as they will have several preliminary matters that will arise from the status conference that they may choose to dispense with first before stating a trial date, something that is eagerly awaited in Kenya.



  1. Holding the trials after the general elections may lead to a Sudan-Bashir similar situation. Is the ICC prepared for such a scenario?

  2. Should these suspects vie for presidency in the coming elections in Kenya then the credibility of the Kenya courts will be worse of than before the 2007 post election violence.

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