By Evelyn Kwamboka

Head of Public Service Francis Muthaura may be forced to go for the confirmation of charges hearing minus one lawyer.

This will take place if the International Criminal Court (ICC) rules in favour of its Prosecutor Luis Moreno-Ocampo’s application seeking to have Mr Essa Faal disqualified from Muthaura’s defence team of lawyers.

The prosecutor filed the application in court on Friday, 20 days to the confirmation of charges hearing against the post election violence suspect, as one of his lawyers, Mr Evans Monari, was seen busy up and down at the ICC premises.

In the appeal documents filed at the court’s registry, the prosecutor wants Faal disqualified or the matter referred to the Pre-Trial Chamber II to apply "the correct test.

The appeal is on grounds that Pre-Trial Chamber II judge Ekaterina Trendafilova erred in finding that there is no conflict of interest if Faal continues representing Muthaura in the case touching on charges against humanity.

Faal who was a senior trial lawyer in Ocampo’s office, resigned on March 31 to join Muthaura’s team of lawyers.

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Ocampo claims the man who headed the Office of the Prosecutor (OTP) teams in the cases arising in the situation in Darfur, Sudan, telephoned ICC’s deputy prosecutor from Kenya on April 22, saying he had joined the defence team.

Ocampo said he filed an application seeking the lawyer’s disqualification but in August 21, the judge dismissed it on grounds that Faal was not aware of confidential information relevant to the case.

"The single judge committed two errors: First, she erred when she refused to apply an objective standard under Article 12(1)(b) of the code of professional conduct of counsel to determine whether counsel is "privy to confidential information as a staff member of the court relating to the case in which counsel seeks to appear."

Second, she erred by requiring that access to confidential information is not enough, and that (a) a counsel must be shown to be subjectively aware of the confidential information, which (b) in addition to being confidential also must be sufficiently "important."

"The prosecution accordingly requests the Appeals Chamber to reverse the impugned decision, provide the correct legal standards, and either invalidate Mr Faal’s appointment or remand the matter to the single judge with directions," he stated in the document.