By Wahome Thuku and Evelyne Kwamboka
The Hague Prosecutor stunned Kenya’s defence teams by readily accepting their call for delay in starting trials, but it now turns out there could have been a hidden intention.
The defence teams are now mulling over the assumption of office by a new Prosecutor, taking over from Luis Moreno-Ocampo, and the fact she has until March when the trials start to tie the loose ends in the cases she inherits.
Initially it appeared that the prosecution would adamantly push for trials within weeks and the defence would have to justify their demand for a date after the General Election, other than the fact that it would allow the two presidential contenders indicted for crimes against humanity to run.
But the suspicion among the legal teams for the accused is that the new Prosecutor, Gambia’s Fatou Bensouda who deputised Moreno-Ocampo, is using the extended waiting period to fill in the gaps in the evidence.
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They also suspect that the Prosecution could have found out that its evidence has some gaps and loose ends that need be addressed, to strengthen its case.
During the extended period, the allies of Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto, who are already on the presidential campaign trail, hoped to use the period to gather a million signatures to persuade ICC on the popularity of the call to delay the trial until after polls, ostensibly to boost national unity.
The defence teams for Uhuru, Ruto and other two accused – former Head of Civil Service Francis Muthaura and Kass FM’s head of operations Joshua arap Sang – now doubt the prosecutor’s intentions.
This comes as the defence is preparing to fight any attempts by the prosecution to introduce alternative charges against presidential aspirants Ruto, Uhuru, and Muthaura. Their legal teams do, in fact, believe that the prosecutor is gathering fresh evidence on against their clients.
ICC has in the meantime embarked on an outreach programme to sensitise Kenyans in the Rift Valley ahead of the trials. The region was the epicentre of 2007-2008 post-election violence. ICC gave an assurance, believed to be aimed at taming anxiety in the region that Ruto and Sang would not be detained at The Hague when trials, which the accused have to sit through, start.
“No warrants have been issued and the court has not issued any statements indicating they would be detained. They are free and remain innocent until proved guilty,” assured ICC field public information and outreach officer Maria Kamara.
Speaking during a meeting with youths and leaders at Kampi ya Moto in Rongai, Nakuru County, she dispelled fears the four Kenyans would be detained when they appear for their cases.
On Tuesday, Sang’s defence lawyer Katwa Kigen said it clearly shows that the prosecution was not yet ready for the hearing. “Having the cases heard next year shows that the prosecution either wants to improve on its witnesses or analyse its documents first,” he argued.
“For Sang, even if we were called tomorrow, we are ready for the hearing,” he declared.
Katwa told The Standard the defence team is prepared to oppose moves by the prosecution to ‘re-characterise’ charges against some of the suspects.
The defence teams say they are opposed to the prosecution’s move to add alternative charges to those in the Document Containing Charges confirmed by Pre-Trial Chamber II.
Katwa said they were only waiting for the prosecution to file its application to raise its opposition.
“The safest thing is to wait for the application to be filed. I can assure you that it would be opposed by the defence teams,” Katwa went on.
Security of witnesses
The prosecution is already conducting further investigations in Kenya to tie up what they describe as matters arising since the crime against humanity charges were confirmed against the suspects.
Although the prosecution claims its key concerns are security of witnesses, the defence says they are not since it had access to witnesses over the last three years, and in fact relocated key witnesses to secret locations. Other points of disagreement include the disclosure of all materials and evidence, which the prosecution says will not be complete until early next year.
“The end of this year would be a very ambitious timeline because we still have witness security issues, but we want to start as soon as possible,” said the lead prosecutor on the Uhuru and Muthaura case, Adeboye Akingbolahan.
The prosecutor said they would have been ready to start the trials by end of this year, save for the issues regarding reduction of evidence, disclosure, and protection of witnesses.
“The prosecution will only be ready for trials once they are sure that their witnesses are safe. Failure to guarantee witness protection would be devastating to the entire trial,” said international human rights advocate Lempaa Soyianka.
Katwa said his client wanted a date that would come after the full disclosure of the material by the prosecution. This would enable them understand the case they would be facing and respond appropriately.
Criminal law advocate Irungu Kanga’ata said witness protection schemes must be bolstered during trial and the prosecution must also ensure they have a good case before the case begins.
Ms Akingbolahan said they had 20 materials ready for immediate disclosure, but another 680 items relating to witness identities could only be disclosed after a protocol of reduction had been agreed by the parties and approved by the court.
Some 1,650-page worth of interview transcripts from six witnesses were still being processed. Another 560 items were being reviewed to decide if it would be part of the evidence.
“An extension of time to next year means the defence team will meet an equally well prepared prosecution team and this is not very good for the accused,” another lawyer said
During the status conference last week, Presiding judge Kuniko Ozaki questioned why the prosecution was still conducting investigations several months after the four were committed to trial.
The prosecution argued convincingly that though it had the same witnesses as those listed at the confirmation hearing, they were interviewing others due to specific incidents.
The prosecution has until July 4, to make written submissions on why the charges facing Uhuru, Ruto, and Muthaura should have multiple characteristics.