As Kenyatta Trial is Postponed, ICC Finds Fault on Both Sides

Judges of the International Criminal Court have postponed the start of President Uhuru Muigai Kenyatta’s trial for the fourth time, to allow the Kenyan government time to provide financial information on Kenyatta that the prosecution has been requesting for the past two years.

The judges of Trial Chamber V(b) set October 7 as the new provisional start date for the trial. President Kenyatta is facing five counts of crimes against humanity for his alleged role in the violence that followed the December 2007 elections.

In their unanimous Monday decision Trial Chamber V(b) ruled on two applications filed by ICC Prosecutor Fatou Bensouda and one application by Kenyatta’s lawyers, Steve Kay and Gillian Higgins. The fact the judges granted part of one of the applications Bensouda filed and declined the Kenyatta legal team’s application to terminate the case will be interpreted as a victory for the Office of the Prosecutor.

Bensouda had applied to Trial Chamber V(b) to indefinitely postpone the trial until the Kenyan government provided her office with the financial information it had first requested in April 2012. The judges’ Monday decision granted only a limited postponement.

“In the Chamber’s view, there has been a substantial unexplained delay on the part of the Kenyan government in either giving effect to the cooperation request or raising any problems which may have prevented execution of the request,” the judges said.

“The Chamber considers that the fact that an adjournment is now being necessitated in order to facilitate compliance amply demonstrates the impact that the Kenyan government’s actions have had on the proceedings in this case,” the judges observed.

They deferred, however, any decision on the prosecution’s request that Kenya be reported to the Assembly of State Parties for not complying with its obligations to the court under Article 87(7). They said the six-month postponement was to give more time to the Kenyan government to work with the prosecution to ensure all legal means were exhausted in getting the financial information that was pending.

The judges also set conditions to the six-month adjournment. They have ordered the prosecution to revise its request for records and send it to the Kenyan government within the next two weeks. They have also ordered the Kenyan government to let the prosecution know of any impediments to its revised request within two weeks of receiving it. The judges also ordered the prosecution and the Kenyan government to file reports every two months on the status of the revised request. Trial Chamber V(b) said it expected to receive the first report by April 30. The judges also scheduled a status conference for July 9 to review progress on the issue.

The prosecution was, however, cautioned by the judges who declined to grant a separate application the prosecution made for the trial to be adjourned for three months because another witness had recanted his evidence and one more had declined to testify. The prosecution said it would use the three months to investigate additional evidence, a proposal that drew the caution from the judges.

“Additionally, the Prosecution was, from an early stage of the proceedings, on notice regarding potentially serious challenges to the credibility of certain of its key witnesses,” the judges said.

This should have been sufficient to prompt a thorough review of the evidence in the case and, in particular, the consistency and reliability of witness statements,” the judges observed. “Despite the fact that the Prosecution has had ample time to prepare the case for trial, this was not done in an appropriately timely manner.”

“Consequently, the Chamber considers it appropriate to caution the Prosecution in that regard,” the judges said.

In Monday’s decision, the judges also declined to grant the request by Kenyatta’s legal team to terminate the case on the basis that there was insufficient evidence. The judges also made reference to Kenyatta’s position as president and the potential conflict of interest that could create in relation to the information the Office of the Prosecutor is seeking.

“As noted above, it is a distinct aspect of this case that the accused is currently the Head of the State and Government of the Republic of Kenya, and therefore in a position of particular influence, including over Kenyan society as a whole,” the judges noted.

“In that regard, the Chamber notes certain conduct on the part of the accused, in his capacity as President, which has the potential to contribute to an atmosphere adverse to the Prosecution’s investigation on the ground, as well as to foster hostility towards victims and witnesses who are cooperating with the Court,” the judges said in their decision, referring to a speech Kenyatta made during a summit on the ICC the African Union  held in October last year.

They also disagreed with Attorney General Githu Muigai’s interpretation of the powers of the ICC prosecutor. Muigai had argued during a status conference held on February 13 that the prosecution could not directly ask the government for the information. His position was that it was for the trial chamber to order the government to provide the financial information the prosecution had asked.

Monday’s decision does not automatically mean that the much-postponed Kenyatta trial will be starting in October even if the prosecution gets the information it is seeking.

“The Prosecution submitted that the financial information sought is ‘relevant to a central allegation’ and ‘could prove decisive’,” however it also acknowledged that the information ‘may or may not yield evidence relevant to this case’,” the judges noted in their decision.


  1. Dues he old adage of “Justice delayed is justice denied,” apply in this case? The jury is out there.

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