When Kenya’s President Uhuru Muigai Kenyatta shows up at The Hague he will become the first sitting head of state to appear before the International Criminal Court (ICC) as an accused person (Kenyatta attended his pretrial hearing at the ICC in September, 2011, but at that time he was still deputy prime minister).
Kenyatta has been called to The Hague for a status conference—a private meeting between the judges, the prosecution and the defense to consider the state of the case. In deciding to postpone the trial opening originally scheduled for October 7, and to schedule the status conference instead, Trial Chamber V(b) noted that the case had reached a “critical juncture.” This is also one of the reasons the chamber gave in its September 30 decision for insisting on Kenyatta’s presence, despite a defense request that he be excused from attending court.
The gravity of the moment is reflected in the central question that will be before the judges on Tuesday and Wednesday: should the chamber indefinitely adjourn the trial, as requested by the prosecution, or terminate it, as Kenyatta’s lawyers have asked?
Both the defense and prosecution agree on one thing: the prosecution’s evidence does not meet the “beyond reasonable doubt” threshold necessary to prove the allegations against Kenyatta. Each side, however, has different reasons for reaching this conclusion.
However, judges will not be deciding on whether the evidentiary threshold has been met by the prosecution when they hear submissions between October 7 and October 8. In different decisions Trial Chamber V(b) and its predecessor, Trial Chamber V, have emphasized that judges can only determine the strength or quality of any evidence once a trial has taken place.
Instead, the chamber will be seeking clarity on the progress of implementing its decision of July 29 this year, which ordered the Kenyan government to provide the prosecution with eight categories of records relating to Kenyatta or companies and third parties associated with him. That decision followed an earlier one made in March in which the chamber required the Kenyan government and prosecution to meet and negotiate how to make available those records and then report to the chamber every two months.
In the July 29 decision, the judges did not set any reporting conditions, so the status conference on Tuesday will be the first time since that decision that the chamber will be hearing jointly from both sides. The prosecution has said these records will determine whether the prosecution will persevere with the case or withdraw the charges against Kenyatta.
Before this latest phase of the Kenyatta case, his lawyers had applied three times to have the case terminated or have the proceedings permanently suspended. In March last year, Kenyatta’s defense team asked the chamber to terminate the case. The judges at the time held that terminating the case was not the appropriate remedy to the issues Kenyatta’s lawyers raised. At the time, Kenyatta’s lawyers said that the withdrawal of a key prosecution witness and the prosecution’s delayed disclosure of evidence were grounds for terminating the case. Trial Chamber V disagreed and instead gave Kenyatta’s lawyers more time to prepare their defense.
In January this year, Kenyatta’s lawyers renewed their request for the case against their client to be terminated; at that time they cited a prosecution statement to the court that the current evidence against Kenyatta did not meet the beyond reasonable doubt threshold required by the ICC. Trial Chamber V(b) declined to grant that request. The chamber pointed out that the prosecution had yet to receive records that were requested from the Kenyan government in April 2012; it concluded that this matter needed to be resolved first, before any decision on the request to terminate the case could be taken. In that decision made in March this year, the chamber left open the issue of whether to refer Kenya to the ICC membership for failure to cooperate with the court.
Kenyatta’s lawyers also applied to the chamber to permanently suspend the case or issue a permanent stay of proceedings in October, 2013. They argued then that a witness, Witness 118, and an intermediary for the prosecution had sought to influence a group of 10 prosecution witnesses to make up evidence against Kenyatta. In that application, they also argued that another prosecution witness, Witness 12, had solicited money to change his evidence in favor of Kenyatta. The judges concluded that issuing a permanent stay of proceedings was an extreme measure to be taken to protect the rights of an accused person to a fair trial. The chamber said that was not the situation in the Kenyatta case.
The judges also concluded that a lot of what the defense said about prosecution witnesses could only be tested in a trial process. They gave an example of audio recordings Witness 12 made on the prosecution’s instruction. The judges noted that the defense and prosecution interpreted differently the translation of those recordings, and those interpretations, the judges said, could only be best tested in a trial.
Kenyatta’s trial has been postponed five times now. His lawyers have sought to halt the proceedings at least three times. These factors cumulatively raise the question of an accused person’s right to a fair and expeditious trial, as provided for in the ICC’s fundamental law, the Rome Statute. These considerations will also be on the minds of the judges of Trial Chamber V(b) once they rise at the end of the second status conference next week to go and reach a decision on whether to adjourn or terminate the trial.
The victims of the bloodshed that followed the December 2007 presidential election who are yet to receive justice will also surely be taken into consideration. This is the reason why the Kenyan cases are before the ICC in the first place.
As the chamber said, the case has reached a “critical juncture.”