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.