Judges decline to stop Kenyatta case – Part 1

Trial judges at the International Criminal Court (ICC) have declined to terminate the case against President Uhuru Muigai Kenyatta as his lawyers had requested, paving the way for Kenyatta to stand trial in two months’ time.

The prosecution was not spared bad news either, receiving a reprimand from the judges of Trial Chamber V for the prosecution’s self-admitted lapses in making timely disclosure of all statements made by one prosecution witness. Presiding Judge Kuniko Ozaki and judges Christine Van den Wyngaert and Chile Eboe-Osuji not only reprimanded the prosecution, but also ordered the prosecution to certify to the court later this month that they have reviewed all materials in their possession and made the required disclosures.

On April 26,  judges Ozaki, Van den Wyngaert, and Eboe-Osuji issued the the unanimous decision, which held that Kenyatta’s trial will begin on July 9 as they had previously ordered. However, they also said they would consider delaying the trial if Kenyatta’s defense team applied for more time to allow them prepare for trial given the significant new evidence the prosecution has presented against their client.

Though the judges agreed on the conclusions in their 57-page decision, they either disagreed on particular points or felt the need to expound on their reasoning. Thus, each judge also filed separate opinions to highlight issues important to them.

The April 26 decision means that there is no further challenge Kenyatta’s team can make to the charges against him, except at trial. Ozaki, Van den Wyngaert, and Eboe-Osuji said that they could not, as asked by Kenyatta’s lawyers, reopen the question of whether Pre-Trial Chamber II reached the right conclusion when, in a majority decision, it decided to confirm five counts of crimes against humanity against Kenyatta. The judges said that the Kenyatta legal team had already been granted and lost an appeal against the January 2012 decision to confirm the charges against their client. This is as far as the matter could go, they said, adding that the defense will have the opportunity to expose any deficiencies in the prosecution’s evidence during trial.

Kenyatta’s lawyers Steven Kay and Gillian Higgins had asked the judges in a total of seven documents filed between February and March to consider terminating or suspending proceedings against their client because the prosecution had admitted that one of their witnesses was compromised, which they argued made the charges against their client invalid. They also asked the judges to consider sending the case back to Pre-Trial Chamber II, if they declined to terminate or suspend the trial proceedings against their client.

The judges declined to grant any of the three requests. They said that they disagreed with the arguments that the prosecution deliberately failed to disclose an affidavit prosecution witness number four had sworn, which may have helped the defense case during the pre-trial phase.

The affidavit in question formed part of an asylum application, in which prosecution witness number four stated that he was not at the meetings he claimed to the prosecution to have attended. The prosecution said their system of handling evidence required them to compartmentalize lawyers into different groups, which resulted in the importance of the affidavit only came to light when they were preparing to make disclosures ahead of the trial. Then, in an interview after the charges against Kenyatta were confirmed, the prosecution found out the witness in question had been compromised and revealed this to the defense in disclosures ahead of the July trial.

“A prosecution office system that presents the unnerving danger that lurks behind that admission earnestly calls for a thorough review by the Prosecutor to ensure the fitness of the system for the desired purpose,” said Eboe-Osuji in his separate 35-page opinion dated May 2 and published on the ICC website last Friday.

“In my view, the ‘serious concerns’ alluded to in the Chamber’s decision in relation to the rights of the accused and the integrity of the proceedings are anchored in the worrisome question reasonably provoked whether similar failings have not occurred in the past in this case or may not recur in the future,” he further added. “It is for that reason that I support the requirement of the Prosecutor and her deputy to certify against these risks as a confidence-building measure.”

The judges also disagreed with the defense assertion that the prosecution’s decision not to use witness number four considerably weakened its case against Kenyatta and made Pre-Trial Chamber II’s decision to confirm charges against him invalid.

“The Chamber considers that these Defence submissions constitute an impermissible attempt to have the Chamber effectively entertain an appeal of the Confirmation Decision,” the judges said. “The Chamber has no appellate jurisdiction over decisions of the Pre-Trial Chamber.”

Ozaki in a separate two-page opinion added that if a trial chamber finds there were “serious substantive deficiencies” in the decision to confirm charges against a suspect, which would make them invalid or flawed, then it could invite the prosecution to withdraw the charges or apply to the pre-trial chamber to amend them as prescribed in Article 61 of the Rome Statute.

“If the Prosecution were to refuse to do so, the trial will continue, or, if the Chamber finds that the continuation of the trial on the basis of such charges violates the fundamental rights of the accused so that a fair trial becomes impossible, it will rely on its general power and obligation as set out in Article 64(2) of the Statute, and terminate or stay the proceedings,” Ozaki said in her opinion dated April 26.

Eboe-Osuji said in his separate opinion that it will be rare for an accused person to agree with the findings of a pre-trial chamber, but, he added, that is no reason to go beyond the prescribed appeal process to reopen a confirmation decision.

“The proper approach should be one which maintains that an accused that disagrees with the findings of the Pre-Trial Chamber, on the basis that the confirmed case was weak, will have ample opportunity at trial to demonstrate the weakness. He will eminently succeed in that endeavour if the case is truly weak,” said Eboe-Osuji.

Ozaki, Van den Wyngaert, and Eboe-Osuji also disagreed with the defense submission that the prosecution’s new evidence in the case meant the defense was going to be answering an entirely different case from the one that Pre-Trial Chamber II confirmed.

“The Chamber therefore finds that none of the allegations to which the Defence points exceed the facts and circumstances described in the confirmed charges and reflected in the Updated DCC [Document Containing the Charges],” the judges said.

Tomorrow, the second part of this article will focus on the other criticisms the prosecution received from Trial Chamber V.

 

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