By the time Kenyan legislators petitioned the recently concluded Assembly of States Parties (ASP) to order an independent audit of how the Office of the Prosecutor (OTP) selected witnesses for its cases, International Criminal Court (ICC) judges had already made decisions on similar issues that arose earlier this year.
In their October 13 petition to the United Nations Security Council and the president of the ASP, the Kenyan members of the National Assembly and Senate also asked that the trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang be suspended until the independent audit had been carried out.
In total, 190 legislators from both the ruling coalition and the opposition signed the petition. Kenya’s National Assembly and Senate have a combined membership of 416. The petition stated that the lawmakers were spurred to make the petition after recent allegations made in Kenya that some of the witnesses in the case against Ruto and Sang may have been coached to falsely implicate the two in the violence that erupted after the December 2007 presidential election and which is the subject of the trial at the ICC.
No decision was made on the Kenyan legislators’ petition at the ASP, which ended on November 26.
Early this year, however, judges of Trial Chamber V(a) issued three separate but related decisions on, among other issues, whether the prosecution had sufficiently investigated claims by some of its witnesses that they gave false statements against the accused partly because they wanted to be relocated. The judges also made decisions on whether the prosecution had disclosed to the defense all material available to it and whether any failure of disclosure warranted sanctions against the prosecution.
Each of the three decisions was issued unanimously. The decisions were made in January and February but the redacted versions were only made public mid-year.
In their January 12 decision, the judges ordered the prosecution to request official records and documents from a country that is unnamed in the public version of that decision. It is clear from the decision that the records and documents relate to witnesses who had testified before Trial Chamber V(a) in September 2014 or October 2014. It is unclear which witnesses in particular were to be the subject of that request for information or whether such a request covered other individuals because those details were redacted from the decision.
During their testimony prosecution witnesses 516 and 637 separately claimed that they had been coached on what to tell prosecution investigators to ensure they are listed prosecution witnesses. The two witnesses claimed that the unnamed individuals who prepared them for their interviews with prosecution investigators told them that getting on the prosecution witness list would gain them benefits such as relocation.
The January 12 decision of Trial Chamber V(a) followed a joint application by the defense of Ruto and Sang on November 3, 2014 in which they asked the judges to order the prosecution to investigate the claims some witnesses made while testifying in court about their motivations for becoming prosecution witnesses. The defense stated that they were making the joint application to involve the judges in the matter because they had been unable to reach agreement with the prosecution. In response, the prosecution asked the judges to dismiss the application because the information the defense was seeking was not information it had when it was preparing the case and therefore did not fall within the prosecution’s obligation to disclose exculpatory material to the defense.
Trial Chamber V(a) disagreed with the prosecution. It is not publicly known what, if anything, came of the request for records and documents the prosecution sent to the unnamed country.
The other two decisions relate to applications by Ruto’s lawyers raising questions about how the prosecution disclosed information, whether it was evidence the witnesses had that was favorable to the defense or questions the prosecution’s investigators raised about particular witnesses.
In October 2014, Ruto’s lawyers asked Trial Chamber V(a) to appoint a disclosure officer to countercheck that the prosecution disclosed all the material it had in its possession and did so on time. At the ICC, no disclosure officer has ever been appointed. In other jurisdictions, such an appointment is considered an extreme measure because it implies a breakdown in communication and cooperation between opposing legal teams.
The Ruto defense listed nine issues related to disclosures which it said showed the prosecution’s unreasonable delay in sharing reports and other material relevant to the trial. The Ruto defense argued that these constituted “disclosure violations,” and harmed the fair trial rights of Ruto. The prosecution disagreed, arguing that the reports and materials in question were not crucial and while there had been delays, these did not hurt the defense’s rights.
Trial Chamber V(a), in its public decision dated February 16, declined to appoint a disclosure officer. The chamber did, however, order the prosecution to review its disclosures and immediately disclose any necessary information. Once such a review is completed, the prosecution should certify to the court it has done so, Trial Chamber V(a) ordered.
On August 27, the prosecution issued its certification of the review of its case file.
In its February 16 decision, the chamber noted that in seven out of the nine disclosure failures raised by the defense, the prosecution indeed had not fulfilled its obligations. However, the chamber considered, this did not warrant appointing a disclosure officer. The chamber said five of those seven failures were due to human error and the other two were because the chamber itself overruled the prosecution on what could be disclosed to the defense.
“The Chamber has also taken into consideration that, in comparison to these seven failures, the Prosecution has disclosed 6,300 items and almost 51,000 pages of material in the past three and a half years,” the judges wrote.
“On these facts, the Chamber considers that the Prosecution’s disclosure failures reveal imperfections in the Prosecution’s disclosure system rather than systematic failures indicating lack of fitness for purpose,” the judges concluded.
The third decision Trial Chamber V(a) issued was in relation to an application by Ruto’s defense team asking the judges to sanction the prosecutor or/and staff of the OTP for four failures. One was failing to inform the judges of the change in circumstances that led to them allowing the prosecution to add Witness 613 to its list of witnesses. The second was making statements that were untrue during oral submissions. The third was providing material that was misleading and inaccurate during written submissions and the final one was the way prosecution investigators conducted their interview of a witness whose details are redacted in the public version of the chamber’s decision.
On reviewing the submissions made by the defense and prosecution, the chamber concluded in its February 16 decision that the conduct of prosecution lawyers and investigators did not warrant the chamber reprimanding them or imposing sanctions on them.
The judges did, however, remind all involved that they should make sure their submissions are always accurate and where necessary ask for time to make sure they present the correct facts in submissions. They also asked lawyers to be cautious before initiating such litigation.
“The Chamber encourages all counsel in this case to consider that the dictates of graceful professionalism should encourage counsel to give each other the benefit of the doubt in the face of the temptation to stake an opponent upon the pillory of professional misconduct. The resulting litigation and lingering rancour involve the risk of distraction from the real interests that brought counsel to their respective tasks in the case,” the judges concluded.