Parties assemble for talks as stage set for ICC trials

By Lillian Aluanga-Delvaux

Kenya’s cases at the International Criminal Court return to the limelight this week, as parties involved in the hearings meet in The Hague for a Status Conference.

Deputy Prime Minister Uhuru Kenyatta, former Public Service head Francis Muthaura, Eldoret North MP William Ruto, and radio journalist Joshua Sang were, in January, committed to stand trial for crimes against humanity, including murder and rape.

The crimes allegedly occurred during post-election violence.

Similar charges leveled against former Police Commissioner Hussein Ali and Tinderet MP Henry Kosgey were, however, dropped with the Pre-Trial Chamber II judges ruling that evidence presented against the two had not met the threshold required to have them committed to trial.

The Status Conference, slated for June 11-12 will be attended by judges, the ICC Prosecutor and legal counsel for the defence and victims and is expected to deliberate on a suitable date of start of the trials.

The meeting will probably be ICC Prosecutor Luis Moreno-Ocampo’s last appearance in Chamber V, the venue of the trial, given his impending retirement in mid June.

Gambia’s Fatou Bensouda will succeed Ocampo. But just what will be discussed at this forum?

“The Status Conference is held to eliminate any surprises that may come up during the trial. It also involves discussions on the trial dates as well as ensuring all parties involved understand their roles during proceedings,” says International Commission of Jurists (ICJ) Kenya Chapter Executive Director George Kegoro.

As was the case during a similar session held before the confirmation of charges hearings in September last year, the accused persons do not have to appear in person, unless asked to do so by the court. So far, Sang is the only one among the accused who has confirmed his attendance.

It is also at the Status Conference where any additional issues that may have been raised by the victim’s legal representative, Prosecutor or Defence counsel will be discussed.

General Election

Some of the accused have asked the judges to consider setting the trial date after the March 2013 General Election. Ruto, has through his lawyers, argued the elections present “an important and further opportunity” for him to continue reconciliation efforts he began after the post-election violence. Sang’s reasons for seeking a post-March 2013 trial date are hinged on the premise that ‘his potential witnesses are already involved in political campaigns and may therefore not be available until after the polls’.

International Centre for Policy and Conflict (ICPC) Executive Director Ndung’u Wainaina says while it is within the rights of the accused to make the request, a lot of dynamics will have to be considered as the Chamber seeks to set a trial date.

“They (judges) would want to remain as fair as possible to all the parties involved and make determinations that don’t jeopardise their (parties) interests,” he says.

According to Wainaina, key issues to be discussed at the Status Conference include procedures of full disclosure of evidence and how this will be managed.

Besides the format for disclosure of evidence, other matters that may be discussed could touch on the use of anonymous witnesses and their protection, as well as whether there will be need to make site visits during the trial.

“It is also at this session where the Defence can raise issues on accessibility to statements which they may not have but think would help strengthen their cases,” says Kegoro. The disclosure of evidence remains a sensitive issue given concerns earlier raised by Ocampo over the safety of witnesses and their families.

“We need to understand that the Office of the Prosecutor has not stopped conducting its investigations. We could have a situation where more evidence is dug up and more witnesses called to testify, which makes protection of such people and their families a key issue,” says Wainaina.

At the pre-trial stage, Ocampo redacted much of the witness statements and documents used in the cases, a move challenged by the Defence, which is keen on having full disclosure to enable them adequately prepare their arguments for the trial.

It will be interesting to see what the Status Conference agrees on in this matter, given that the prosecution has already indicated it would require at least a year to present its evidence in each of the cases.

Unlike the confirmation of charges hearings where the prosecution was only required to establish substantial grounds to have cases committed to trial, the threshold is higher at the trial stage where proof must be provided beyond any reasonable doubt to show that the accused persons committed the crimes.

“The judges will have to set parameters. For instance the parties must agree on how long it will take for the Prosecution to present its evidence, as well as set timelines for the Defence to counter all this,” says Wainaina.

Representation of victims is also likely to feature in the discussions, with counsel likely to ask for adequate time to make their submissions during the trial.

Although the trial judges may not immediately announce a date, given that other preliminary matters may arise during the status conference, legal experts have estimated it (trial) could begin next year.

In previous cases, trials have began between six to eight months after the Status Conference. Should the trend continue then it could pose logistical problems for presidential aspirants Ruto and Uhuru, whose presence at the court will be required for the duration of the trial.