Conflicting lawyers dominate court session

By Evelyn Kwamboka

Sharp exchanges between defence and prosecution lawyers and heated arguments over admissible evidence took the better part of the International Criminal Court (ICC) proceedings.

The questioning of witnesses was also drama between lawyer Karim Khan representing Head of Civil Service Francis Muthaura and the lawyer representing victims Morris Anyah.

"I am not going to be bullied by the defence or anybody," Anyah protested after Khan interjected him while he was cross-examining Muthaura’s witness, Foreign Affairs PS Thuita Mwangi.

Khan, who is Muthaura’s lead defence counsel who nearly led to the suspension of confirmation charges hearing, had taken the floor to oppose a question posed to Mwangi.

The exchange between Anyah and Khan, who is also an official of ICC’s disciplinary appeals board, forced Pre-Trial Chamber II Judge Ekaterina Trendafilova to interject from time to time to save the court’s time.

At one point, the judge told Khan to allow Anyah to finish cross-examining the witness, since the court had already lost 30 minutes on an issue he had raised in court.

On Tuesday, Khan did not spare the prosecution team led by Ms Adesola Adeboyejo. He took issue when she questioned the PS on the sale of the Kenyan Embassy in Tokyo, Japan.

Khan and his team that followed the proceedings keenly without letting any word escape them, at one point forced Adeboyejo to retract a question touching on Anglo Leasing when Khan demanded that she produces in court evidence showing that Muthaura was involved in the scandal.

Retracted

The judge marked the Anglo Leasing question as retracted after Adeboyejo, who had initially indicated to the court that the prosecution was to produce the evidence, failed to do so.

Earlier on, Khan had indicated to the court that he wanted the judges to accept a black file containing NSAC confidential documents.

Pre-Trial Chamber II judges Trendafilova, Hans-Peter Kaul and Cuno Traffuser, who had declined to receive the file, were forced to suspend the hearing for 15 minutes to deliberate on the crucial issue that nearly caused a stalemate in court.

In the deliberation room, the judges went through the documents bearing in mind that the defence had supplied on Monday a witness statement that had not been disclosed, and returned with a verdict that saved the proceedings from stalling.

Judge Trendafilova allowed the defence to use the material, saying the bench was concerned on whether to proceed with the written material or the computerised one that is relayed on the screen.

The judge, who had initially consulted her two colleagues in open court for a minute, had indicated that in recollecting events, a witness is not allowed to use written documents to refresh his memory.

"The court expects the witness to recollect the activities and he cannot be supported using documents," the judge said.

Questioning their integrity

The court made it clear to Muthaura’s defence team comprised of Khan, Mr Ken Ogeto, Essa Faal and Shymala Alagendra that nobody was questioning their integrity.

In his argument, Khan told the court that not everybody is compliant with the court’s E-system, hence the need to have Mwangi, who is Muthaura’s second witness, refer to the written material.

The defence wanted the written documents in a black file to assist the judges follow the PS’s examination in chief.

Muthaura, who was the first to produce his witnesses in court, is alleged to have personally led and exercised a coordinating role within an organisation that was formed to ensure PNU remains in power.

Muthaura is now fighting claims by the court’s Prosecutor Luis Moreno-Ocampo that a number of meetings between prominent PNU members and the outlawed Mungiki sect members were in the common plan and its implementation were agreed upon.

The violence led to 152 deaths, more than 39 cases of rape and several people injured.