Prosecution changes view on trial venue for Kenyatta case

In the space of six months, the International Criminal Court Prosecutor has become completely opposed to holding the trial of President Uhuru Muigai Kenyatta anywhere other than The Hague, whereas previously the prosecution was supportive of having part of the trial in Kenya or Tanzania.

ICC Prosecutor Fatou Bensouda is the only person who has changed her position from the one she held in February this year. The change follows a July 29 order made by judges of Trial Chamber V(b) asking the prosecution, defense, lawyer for victims and registry to submit further observations on the issue of where the trial should be held.

The judges said they were asking for more submissions on the issue because the original applicant, former Public Service boss Francis Kirimi Muthaura, is no longer an accused person before the court. The charges against Muthaura were withdrawn in March this year after the prosecution said it would no longer use the key witness against the veteran public servant because that witness had become compromised. The judges also said that they were asking for the submissions in light of the election of Kenyatta to Kenya’s top office in March this year.

In response to the judges’ order, Bensouda argued in her redacted August 13 submission that it is not within the judges’ power to make a recommendation on the trial venue. Bensouda made this point to answer the judges’ request that all involved in the case submit their views on whether Trial Chamber V(b) can make a recommendation to the court’s presidency on the matter. Bensouda said that Rule 100 of the court’s Rules of Procedure and Evidence does not allow the possibility of a trial chamber initiating a process to determine where a trial will be held.

Bensouda went on to say that even if the judges could make a recommendation to the presidency, the prosecution is of the view that the trial should take place at The Hague and nowhere else. The reasons she gave include the fact that Kenyatta became Kenya’s president after the March General Elections this year and the declining support for the ICC since Kenyatta’s election. Bensouda argued that the declining support means that any sittings of the court in Kenya would be in a hostile environment.

Bensouda further claimed that incidents of witness interference have continued unabated since Kenyatta became president. She provides some details of the incidents but they are redacted from the public version of her submission. Bensouda said that these incidents are likely to increase as the opening of the trial draws closer.

“The high levels and broad scope of witness interference, and the capacity and intent of supporters of the Accused, indicate that risks to witnesses during a trial in Kenya may be high and would be difficult to mitigate,” she said. The prosecution is of the view that holding part or all of the trial in the neighbouring country of Tanzania will not improve any security concerns they have.

The lawyers for Kenyatta, Steven Kay and Gillian Higgins, said in their August 12 submissions that Trial Chamber V(b) was within in its rights to consider the issue of the trial venue, irrespective of the fact that the original applicant was no longer an accused person before the court. They also said that they had no objection if the opening or other sessions of the trial are held outside The Hague, echoing the position they had stated in their February submissions.

The Registry also did not change their position much from what they had submitted in February. The new development they informed the court about in their August 13 observations was that Tanzanian authorities had responded sometime after March to their letter concerning an agreement on privileges and immunities. The Registry said that Tanzania’s Foreign Affairs Ministry promised to finalize all requirements to have the ICC covered under the country’s Diplomatic and Consular Immunities and Privileges Act.

Fergal Gaynor, who represents the victims in the Kenyatta case, in his submissions said that there was no reason for Trial Chamber V(b) to consider the question of the trial venue because neither the defense nor the prosecution had made an application to the ICC Presidency on the matter. Gaynor further said that given the July decision of the plenary of ICC judges that the trial of the other Kenyan case be held in its entirety at The Hague, there was no reason to expect a different decision. The other case involves Kenyatta’s deputy, William Samoei Ruto, and radio journalist Joshua Arap Sang.

Gaynor also said that the victims he represents are completely opposed to holding the trial anywhere other than The Hague but they support the idea of the judges and other court officials making a site visit to familiarize themselves with the places that are the subject of the court case.

In what is at times referred to as Kenya case two, the judges have moved slower on handling the question of the trial venue than in Kenya case one. Yet the chambers handling the Kenya cases share two judges. Judges Chile Eboe-Osuji and Robert Fremr sit in Trial Chamber V(a) that handles the Ruto and Sang case, or Kenya case one. The two also sit in Trial Chamber V(b) that handles the Kenyatta case.

The issue of venue was first raised in Kenya case two in May last year but the formal submissions were made between December and February. In the first Kenya case, the issue only came up in December last year and the formal submissions were made between January and February. A detailed look into those submissions is available in an earlier post on ICC Kenya Monitor split into Part 1 and Part 2. The judges of Trial Chamber V(a) made their recommendation to the ICC Presidency in June and a plenary of the court’s judges decided in July that the trial of Ruto and Sang will be held in its entirety at The Hague.