Prosecutors Oppose November Start for Kenya Case

Prosecutors at the International Criminal Court, ICC, have opposed an attempt by Kenya’s new deputy president William Ruto to get the start of his trial delayed until November. 

The prosecution and the representative of victims in the case also argued against a motion from Ruto’s lawyers seeking permission for him not to be present in person during the trial, but to attend proceedings via a video-link with Nairobi.

Deputy-President Ruto and President Uhuru Kenyatta, elected in March, face trial in two separate ICC cases known as Kenya 1 and Kenya 2. A third suspect, radio broadcaster Joshua Arap Sang, faces trial alongside Ruto in Kenya 1.

The three men are accused of orchestrating the violence which engulfed Kenya after the disputed 2007 presidential election. More than 1,100 people were killed and 650,000 uprooted from their homes in late 2007 and early 2008 as fighting broke out along political lines and descended into ethnic conflict.

Judges at the ICC convened a status conference in the Kenya 1 case on May 14-15, to hear arguments on a suitable start date for the trial. The previous week, they abandoned the scheduled start date of May 28. It was the second postponement of its kind.

Ruto’s lawyers have asked judges to wait until November before starting proceedings, on the grounds of delays in the prosecution handing over evidence to the defence.

In court, his lead counsel Karim Khan accused the prosecution of delaying the handover, only to "dump" evidence on the defence shortly before the trial was due to start.

Khan argued that the continuing late disclosure of prosecution evidence – which he described as “a hydra-headed monster" – meant that the defence needed more time to prepare its case.

“The party opposite has introduced thousands and thousands of pages of brand-new evidence, putting the defence in a difficult position to follow a case which keeps on changing,” he said. “Trust us as experienced counsel when we say we need additional time. We are working as hard as we can. Seven days a week. Literally.”

Khan said that only last month, prosecutors handed his team 109 new pieces of incriminatory evidence.

“We need adequate time [to prepare a case], otherwise justice will suffer,” Khan told judges.

Katwa Kigen, lawyer for Ruto’s co-defendant Sang, also asked the chamber to delay the start of the case until November to allow him to pursue further investigations.

Kigen had harsh words for the prosecution’s slow handover of the evidence.

“The delays in disclosure of evidence by the prosecution seek to ambush the defence,” he said. “The defence asks for an absolute ceiling on prosecution disclosure.”

Prosecutors say the delays are due to security concerns surrounding their witnesses. In submissions to ICC judges this week, they said that postponing the trial further could jeopardise the safety of witnesses. Waiting until November would be “excessive”, they said.

“We are ready to commence the case immediately,” Cynthia Tai told judges on behalf of the prosecution.

Lucio Garcia, also for the prosecution, disputed the defence’s claim that delays in disclosing evidence necessitated a lengthy postponement of trial.

Garcia told judges that the same arguments were “being recycled and rehashed” by the defence in order to delay proceedings.

Orchlon Narantsetseg, representing the victims in the Kenya 1 case, said the delay would be unjust for his clients. He told judges that it was necessary to “keep the trial delay to an absolute minimum”.

The prosecution also used the court meeting to elaborate on a request to add five new witnesses to its case. Garcia argued that in “exceptional circumstances”, nothing prevented the prosecution from investigating the case further at this stage. He argued that the new witnesses offered “compelling information” that could substantiate existing evidence.

“Exceptional circumstances” seems to refer to witness interference. A number of prosecution witnesses have withdrawn testimony they gave earlier in the prosecution’s investigations.

According to Prosecutor Fatou Bensouda, some witnesses have been killed. The court discussed matters of witnesses and investigations on May 15 in closed session.

Kigen, Sang’s lawyer, objected to the prosecution’s application to introduce new witnesses. He said that if the court allowed prosecutors to bring new witnesses, then the defence should be given more time to examine their evidence.

Judges also used the status conference to hear arguments around Ruto’s request to participate in the trial by video-link

Ruto made the request so as to remain in Nairobi during trial and fulfill his new responsibilities as deputy president.

“An accused is presumed innocent and it’s not house detention,” Khan submitted. “Ruto is not only an individual literally bowing to justice, but he is also the deputy head of state of the Republic of Kenya, with unique responsibilities and bound by the constitution of that country.”

Khan told judges that the same principle that applied to victims in the case should also be extended to his client.

"Today, the victims are here through their legal representative,” Khan said. “The same principle is requested by my client.”

One of the three judges, Judge Chile Eboe-Osuji, took Khan to task, asking him why the arrangement was necessary.

“Did your client seek to put himself in this unique position by running in elections after he was accused [by the ICC]?” the judge asked.

Khan replied that his client had a long career in politics which began before charges were brought at the ICC.

The judge also raised the issue of how the trial would be affected if the video-link technology were to fail.

"We live in [an] imperfect world,” Judge Eboe-Osuji said. “Do you accept all consequences of video-link failure, and will not complain later about it?

Khan said his team would ensure that the technology functioned properly.

Kigen submitted that if judges allowed Ruto to be absent during the trial, then the same right should extend to his client. However, he said that Sang planned to be present throughout proceedings.

The prosecution argued that Ruto needed to be present in person in order to “honour the public” in Kenya and the victims of the 2007-08 violence.

Tai argued that the ICC’s founding treaty, the Rome Statute, requires defendants to be present in the courtroom during trial.

“The victims need to have confidence in the system; they need to feel that they are being heard by all the parties,” she said.

The victims’ representative argued that the integrity of the ICC depended on the physical presence of defendants, calling this a “well-established obligation".

During the status conference, Ruto also allowed to address the judges. He took the opportunity to say he was innocent of the charges and was the victim of false allegations.

“The ICC has produced two types of victims: post-election victims, and victims of falsehood and a conspiracy of lies choreographed by networks against truth and justice,” he told judges.

Ruto reiterated that he would continue to cooperate with the court because he firmly believed in his innocence.

He asked the ICC to strike a balance between his responsibilities to the court and his constitutional obligations as Kenyan deputy president.

Robert Wanjala is a freelance reporter in Eldoret, in Kenya’s Rift Valley region.

This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.