Judges postpone Kenyatta trial for a third time

International Criminal Court (ICC) judges have postponed President Uhuru Muigai Kenyatta’s trial for the third time this year because both the prosecution and defense supported such a delay.

Judges of Trial Chamber V(b) on Thursday provisionally set February 5, 2014 as the new start date for the Kenyatta trial. They made their decision after receiving an application from Kenyatta’s lawyers and responses from the prosecution and lawyer for victims to that application.

In their submissions, Kenyatta’s lawyers and the prosecution agreed on the need to postpone the trial but for different reasons. They also agreed on postponing the trial to February but suggested different dates.

“The Chamber notes that the parties are in agreement on postponing the trial date until February 2014 in order to give the Prosecution additional time to investigate recent factual allegations raised by the Defense. The Chamber accepts the parties’ submissions that a postponement is warranted and vacates the trial date of 12 November 2013,” the judges wrote in their decision. The judges urged the prosecution and the defense to “accelerate” their preparations for trial to avoid any further postponements.

Steven Kay and Gillian Higgins, acting for Kenyatta, applied last week for the trial to be postponed to February. In their October 25 application, Kay and Higgins asked the court to delay the trial to allow the prosecution more time to investigate issues raised in an October 10 application they had made to have the trial suspended. Trial Chamber V(b) has given the prosecution until this coming Friday to respond to the defense’s application but Kay and Higgins argued that because the issues they raised are complex, the prosecution would require more time to investigate and respond to their application.

Kay and Higgins also said a postponement was necessary because Kenyatta’s duties as president required his full attention, especially after the September 21 attack on the Westgate Shopping Mall in which more than 60 were killed. After receiving the defense’s application, Trial Chamber V(b) ordered via email that any responses be filed by October 30.

In her October 30 response, ICC Prosecutor Fatou Bensouda disagreed that her office’s investigation into the issues argued in the defense’s October 10 application warrant delaying the trial. Bensouda also disagreed that Kenyatta’s presidential duties are reason to postpone the trial until February next year.

Instead, Bensouda said that her reason for agreeing to a postponement was the judges’ October 23 decision allowing her to add two new witnesses to the case against Kenyatta, and at the same time requiring the prosecution to reorganize the first 10 witnesses it planned to call in order to give Kenyatta’s lawyers time to prepare their defense against the two new witnesses. Bensouda explained that the judges’ October 23 ruling required that any witnesses related to the testimony of the new witnesses be held back as the defense prepared its case.

Bensouda said this meant she had to schedule alternate witnesses for six of the first 10 witnesses she had already planned to call to testify at the start of the Kenyatta trial. She said that this would be difficult with less than two weeks to trial. Bensouda did not explain why, but a prosecutor under her supervision offered a possible reason this week.

Senior trial lawyer Anton Steynberg said that it takes up to two weeks to get a witness to The Hague and have them ready to testify in court. Steynberg was speaking earlier this week in the separate ongoing trial of Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang when the issue of whether the trial should adjourn on Friday came up for discussion. Steynberg was explaining the time it takes to get a witness to the court and arguing for the proceedings to continue to next week because two witnesses were already in town and ready to testify.

Fergal Gaynor, who acts for the victims in the Kenyatta case, said that many of them had “repeatedly and forcefully” told him that they are opposed to any further delay in the case.

“On behalf of the many women who were raped, the families of those killed with such shocking and senseless brutality, the children who suffer until this day from the horrors they experienced in Naivasha and Nakuru in January 2008, and above all on behalf of the elderly and infirm victims who will pass away before this trial has concluded, it is imperative that all involved in this case – including the Prosecutor and the Accused – redouble our commitment to deliver justice without further delay,” Gaynor wrote in his October 30 response.

Gaynor noted although promises had been made that prosecutions would be initiated into the violence that followed the December 2007 presidential election, no mid-level or high-level suspected perpetrator had been charged in a Kenyan court. He said the victims had waited far too long for justice.

“Without adequate access to education for their children or medical help to relieve the suffering they still experience as a result of the crimes charged in this case, they instead see the Accused deploying huge state resources at the highest international levels to bring his trial – which is their only hope of justice – to an end,” Gaynor said.

The judges said that Gaynor had filed his submission passed the deadline they had set but they noted the concerns of the victims.