On March 7, trial judges at the International Criminal Court (ICC) have provisionally postponed the start of the second Kenya case to give them time to consider an application the accused made to have their case sent back to the pre-trial stage.
Lawyers for Deputy Prime Minister Uhuru Muigai Kenyatta and former Public Service chief Francis Kirimi Muthaura applied last month to Trial Chamber V, asking the judges to consider sending their case back to a pre-trial chamber because a key prosecution witness had been compromised. Last week, the prosecution said it has no objection to Muthaura’s application but opposes Kenyatta’s application.
The judges of Trial Chamber V made an order to provisionally set the start of the second Kenya case to July 9 to allow them handle the applications filed by the Kenyatta and Muthaura teams.
“Considering that on their face the defence applications requesting referral back to the Pre-Trial Chamber raise very serious issues that must be resolved before the trial can proceed and which may not be resolved before 11 April 2013, and considering also the defence submissions relating to the impact of delayed disclosure, which the Chamber must resolve, the Chamber hereby vacates the trial commencement date of 11 April 2013 pending the resolution of these matters,” the judges’ order read.
Today, the same trial chamber announced an order postponing the start date of the first Kenya case until May 28, 2013. The first case involves former Cabinet minister William Samoei Ruto and radio journalist Joshua arap Sang, who are charged with three counts of crimes against humanity for violence that occurred in January 2008 following the disputed December 2007 presidential election. Lawyers for Ruto and Sang made submissions on February 21, arguing that the disclosures made by the prosecution make it difficult for them to be ready for trial by the earlier announced start date of April 10. They asked that the trial start date be postponed to June. The prosecution said they had no objection and even suggested the trial start after the court’s summer recess, which is normally in July.
The trial chamber did not agree with the length of delay requested by Ruto and Sang, and according to the ICC press release, “the Chamber is of the view that the postponement need not be as long as requested by the Defence. The Chamber considers it sufficient to vacate the trial date until 28 May 2013, which should give the Defence adequate additional time to prepare for trial.”
Ruto is Kenyatta’s running mate in this year’s election. Voting took place on Monday, March 4, and the Independent Electoral and Boundaries Commission is tallying the votes after delays caused by the failure of its electronic transmission system that was supposed to relay results from about 33,000 polling stations across the country.
The judges have scheduled a status conference for Monday, March 11, with the prosecution and Kenyatta’s and Muthaura’s lawyers to receive additional information on the legal issues raised in the applications to order the case be sent back to the pre-trial chamber.
The judges have also ordered that the prosecution and defense lawyers in the second Kenya case make submissions by today on a variety of issues, including the scope of the trial chamber’s powers to consider the defenses’ requests. Within the same deadline they have asked the prosecution to state what it anticipates is the scope of review and relief the pre-trial chamber can make in light of the prosecution not objecting to the Muthaura application being referred back to that chamber. In addition, judges want the prosecution to give a detailed account of its investigations before the charges against Kenyatta and Muthaura were confirmed in January last year as well as a detailed account of its investigations after that confirmation.