Judges ask ICC Presidency to appoint second chamber for Kenya cases

International Criminal Court (ICC) judges have asked the court’s president to appoint a second set of judges to handle the two Kenya cases so that the upcoming trials are better managed and are conducted faster.

Presiding Judge Kuniko Ozaki said Trial Chamber V, which is responsible for both Kenya cases, has been in communication with the presidency of the ICC since June last year on the matter, but no decision has been made so far. Judge Ozaki was speaking on Thursday during the status conference among the judges, the prosecution, victims’ counsel, and the four accused. The conference was for the judges to hear the accused affirm that they would abide by the conditions of their summons. The judges also called the conference to hear defense and prosecution lawyers’ views on whether the trials can still start on April 10 and April 11 as announced last year July.

Judge Ozaki pointed out that whatever the ICC presidency decides, the Kenya trials will only be held in the ICC’s courtroom one because it is the only courtroom best suited for the Kenya cases. This, she said, meant that even if a second chamber was appointed, the judges would have to alternate their hearings.

Joseph Katwa-Kigen, who is representing radio journalist Joshua arap Sang in the first Kenya case, asked the court to consider breaking the hearings into blocks of three to four weeks each. David Hooper, who is representing former Cabinet minister William Samoei Ruto in the same case, said he supported the request Katwa-Kigen made.

On the issue of whether the trials can start as scheduled in April, lawyers for all the accused requested that the trial start date be postponed. The prosecution in each case indicated that they are ready to proceed with the case as scheduled, but they would be comfortable with any decision the judges made on the subject of the trial start date.

The defense lawyers all said the prosecution has delayed the disclosure of the identities and information involving anonymous witnesses or only made disclosure at the last possible moment, making it difficult to prepare a proper defense case in time for the scheduled April start date. They all also argued that that the prosecution was “shifting” the cases.

Karim Khan, who represents former Public Service Chief Francis Kirimi Muthaura in the second Kenya case, said that the prosecution added many new witnesses and new evidence, altering what they had been presented during the pre-trial stage. Khan said that by his legal team’s calculation 68.67 percent of the prosecution’s case was new.

Judge Ozaki ordered that the defense lawyers make written submissions by February 20 on their preferred trial start date and on their concerns about the prosecution’s disclosures. Judge Ozaki said the prosecution would have until February 25 to respond to the defense submissions.

In contemplating a possible new start date for the two Kenya trials, the judges have to consider their own calendar because all of them are part of other chambers trying ongoing cases. Judge Ozaki is one of three judges in the trial involving former Congolese vice president Jean-Pierre Bemba. Judge Christine Van den Wyngaert is involved in the trial of former Congolese rebel leader Germain Katanga. Judge Chile Eboe-Osuji is part of the chamber trying the case of Darfur rebel leaders Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus.

Khan, Katwa-Kigen, and Hooper also asked the court to consider allowing their clients take part in the hearings through the use of video link in exceptional circumstances. For Thursday’s status conference, which the judges had asked all the accused persons to be present, Ruto opted to do so via video link. This option was also used by Deputy Prime Minister Uhuru Muigai Kenyatta, who is the other accused in the second case. The judges had given the accused the option of being in person at The Hague or appearing via video link from Nairobi.

Judge Ozaki ordered the defense teams to make written submissions by February 28 on the issue of video link during the trials.



  1. Kenyan ICC Cases: the case against “a Joinder”
    Article 64(5) of Rome Statute provides that only the Trial Chamber has power to direct a joinder or severance of cases brought before the ICC. The Kenyan cases since the Pre-Trial stage have been joined whereby we have cases 1 and 2 ‘comprising’ of two suspects each charged with nearly the same crimes. I would want someone with legal knowledge to clarify to me whether or not, by joining the cases or allowing the cases to be joined by the ICC prosecutor, the Pre-Trial Chamber usurped the powers of the Trial Chamber and in so doing committed an error, and if so, can such an error lead to a miscarriage of justice?
    Aside from its legal interpretation, a joinder, when analyzed using Game Theory, would not give optimal justice in the case of the Kenyan cases. This is so because in each of the two cases, there are two suspects joined and as such if the trial of the two cases were to be conducted in one Chamber as it is so far designed, then the trials would no doubt take a ‘sequential game model’ characterized by the accused taking to the stand one after the other. Let us take the 4 accused to be the players in our game and name them as follows:
    Case 1 1a 1b
    Case 2 2a 2b

    Now, if all the accused were to be tried in one chamber ( as it is currently designed), we would expect to have proceedings being conducted with respect to the accused one at a time whereby witnesses (including the accused) are taken through examination in chief, cross-examination and re-examination. This sequence would lead to what game economist would call Sequential Game whereby the move by one player is dependent on and follows from what the other player has done. The accused may be lured into playing this game thinking it is sweet while the prosecutor by design or sheer coincidence may capitalize from it. The likely outcome is a sub-optimal level of justice for humanity in the following sense:
    a) Co-operation between the accused in each of the two cases:
    One of the pertinent elements of crime in the Kenyan ICC cases is the claim that there was an organizational policy or network. The onus is on the prosecutor to prove that there was indeed an organizational network between the accused in each of the cases i.e between players 1a and 1b and between 2a and 2b. It is possible that the accused in each case may adopt a common strategy to deny any organizational network, for instance, denying existence of any purported meeting. Thus player 1a and 1b may adopt a nice strategy in which they agree to deny, at all times, ever meeting to plan the post-election violence. This would amount to a game of co-operation where no one defects from what has been commonly adopted. Given that the trial of all the accused would be conducted before one chamber and in a sequential game model, it would be possible for the accused to play co-operative game in which player 1b listens to what player 1a says and makes sure he does not contradict (defect) when his time comes. If such a game is played well, then it would be a daunting task for the prosecutor to prove the existence of an organizational network and thus weaken the charges possibly resulting into acquittal. I say this would be a sub-optimal level of justice for humanity in the sense that the accused would not have been acquitted on the strength of their defense but by simply playing a co-operative game made possible by the ‘sequence’ in the mode of trial.

    b) Tit-for-Tat:
    A sequential trial model, as would be the case in a one-chamber trial would lure the accused (players) into a co-operative game. However, there is a possibility of defection in the course of the proceedings due to the prolonged nature of trial and too much questioning. A defection would occur if a player in one case contradicts what had been commonly agreed. The other player in the same case thus feels provoked and would want to do the same when his time comes to take the stand. Even though there is likelihood of forgiveness and starting co-operation afresh, there is also the likelihood of further defections. The prosecutor, either by design or coincidence may await for this tit-for-tat game to play out. The reason why I would argue that a joinder was not just in the Kenyan cases is this; where the prosecutor lacks sufficient evidence to support the existence of an organizational policy or network, the joinder allows for the possibility of a tit-for-tat whereby the accused in each of the two cases would start contradicting each other and at some point forgetting their nice strategy and not-knowing allowing for the conclusion that there was indeed an organizational network. I would argue and I stand to be corrected that a joinder by its very nature pre-supposes a connection, network, a bond of some kind between the accused. Is it naturally just and procedurally correct, to allege that 1a networked with 1b and that 2a networked with 2b, then proceed to group (join) 1a and 1b, and 2a and 2b and thereafter due to insufficiency or otherwise of evidence, tell 1a and 1b or 2a and 2b to prove that there was no connection or network between them?

    c) Grim Trigger:
    Whereas in tit-for-tat there is possibility of forgiveness and resumption of co-operation, we may also have a case whereby the players agree to co-operate to defeat the organizational network claim. But once one player betrays the other there would a series of retaliatory attacks characterized by ‘no forgiveness’.
    In all the above game plans, we can see that joining the cases and trying the cases before a single chamber would allow for some kind of a sequential game the result of which is a sub-optimal level of justice. I say sub-optimal in the sense that the ‘alternative’ can bring us much closer to the optimal level of justice. So what’s the alternative?
    The alternative is a simultaneous game model where the trial of all the accused would be conducted at the same time. In such a model, every accused would be tried in his or her court room (chamber) and the proceedings would be going on simultaneously and therefore no accused would be able to wait and see or hear what the other has to say so as to respond in a pre-programmed way. Given the resource constraint, I would support establishment of at least two chambers or court rooms but the trials should be conducted such that proceedings on accused 1a and 1b are conducted at the same time in the different court rooms and similarly with 2a and 2b. That is to say, accused 1a and 2a are tried in one chamber (court room) while 1b and 2b are tried the other chamber and when proceedings are going on with regards to 1a in chamber 1, proceedings should be going at the same time with respect to 1b in chamber 2. Thus in a simultaneous game, the players are likely to find themselves in a kind of Prisoner’s Dilemma- not knowing what the other has said, and in the process truth is more likely to come out than with the sequential game model. A simultaneous trial is thus likely to bring us closer to that elusive level of optimal justice than with sequential trial. This is why I would support the ICC Trial Chamber 5’s call for an extra chamber.
    That said, I would still want to hear from lawyers on whether the Pre-Trial Chamber had the power to join the Kenyan ICC cases. And even if it had, I would argue that a joinder in the Kenyan cases is an act of injustice given that it presupposes an organizational network, the very criminal element that should be proved and more so given that the burden of proof is pushed back to the accused in a propped up stage for tit-for-tat. In my opinion, a joinder in the Kenyan cases amounts to a presumption of guilt- the guilt of having established an organizational network that masterminded the alleged crimes against humanity. If by any chance the Pre-Trial Chamber erred in joining the cases, what then is the way forward? I would suppose that the cases against the four Kenyans be referred back to a different Pre-Trial chamber and hearings started afresh but this time the cases should remain severed.

    By Barack Kamire
    A student of M.A (Economics), UON.
    Email: kamirebarrack@yahoo.co.uk
    Cell: + 254 725822145

Comments are closed.