International Justice Monitor

A project of the Open Society Justice Initiative

Kenyan trials at the ICC set for April next year

The International Criminal Court (ICC) has decided the trials of four prominent Kenyans will start next year in April, at least one month after the country’s General Elections are scheduled to be held.

The judges of Trial Chamber V did not refer to the elections in their decisions issued on Monday, even though the prosecution had referred to the elections in its submissions on what trial date it preferred. Kenya’s elections are spoken of in the same breath with the ICC trials in Kenya because two of the accused are aspiring to become the country’s fourth president.

Former Cabinet Minister William Samoei Ruto and radio journalist Joshua arap Sang, who are the accused in the first Kenya case, will go to trial on April 10, 2013. Deputy Prime Minister Uhuru Muigai Kenyatta and former Public Service chief Francis Kirimi Muthaura, who are the accused in the second Kenya case, will go to trial on April 11, 2013.

Ruto and Sang face three counts of crimes against humanity for violence that occurred during January 2008 in Kenya’s North Rift region. Kenyatta and Muthaura face five counts of crimes against humanity for violence that occurred during January 2008 in the country’s Central Rift region. Violence consumed large swathes in Kenya for two months after controversial December 2007 presidential polls. More than 1,000 people were killed during that period, which was the worst violence to engulf the country since Kenya gained independence from Britain in 1963.

Ruto and Kenyatta are seeking to run for president in elections scheduled for March 4, 2013. There has been debate in Kenya whether the two can stand for public office while facing charges at the ICC because Kenya’s nearly two-year old constitution spells out ethical standards leaders need to adhere to.

The judges have scheduled their trials for April next year in order to allow the prosecution make a staggered disclosure of anonymous witnesses protected by the ICC and those anonymous witnesses not under ICC protection. The dates have also been set so as to allow the defense teams three months to prepare their cases following the prosecution’s full disclosure of incriminatory evidence it has against the four accused.

The judges have ordered this full disclosure should be done by January 9 next year, for both cases. They have also asked the prosecution to submit a pre-trial brief by the same date. The judges have said that the pre-trial brief should summarize the evidence each witness will rely on for each count the accused has been charged with. They have also said the pre-trial brief should summarize all other evidence the prosecution intends to rely and clearly explain how the evidence relates to the charges against the accused.

A key concern the prosecution expressed in June during the status conference to discuss the details of how the trials will be conducted was about witness protection. The prosecution had proposed a staggered process of disclosing the witnesses and the evidence they will present. The judges have agreed to this. They have ordered the prosecution to initially make provisional witness and evidence lists available only to judges and the witness protection unit by October 12 this year. The defense will only get to see such a list when the prosecution discloses final witness and evidence lists to the judges and the witness protection unit by January 9, 2013. The judges may make some exceptions, which will be decided on a case by case basis. Even then the judges have ordered that the prosecution will be required to disclose to the defense their identities by February 11, 2013, in the case of ICC protected witnesses and March 12, 2013 for witnesses not protected by the ICC.

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