Kenya Trials Could Begin After 2013 Election

The trial of four Kenyans charged by the International Criminal Court, ICC, could start after the country’s presidential election scheduled for March 4, 2013, if judges agree to the schedule presented by three defence teams in The Hague this week.

At a status conference held on June 11 and 12, judges told the parties in the two separate cases – each of which consists of two defendants – that they would settle on a start date before the court breaks for the summer on July 13.

“The chamber plans to issue an order on the schedule for trial along with the relevant disclosure deadlines before the start of the summer recess,” Presiding Judge Kuniko Ozaki said after hearing arguments on a possible trial date.

The ICC will hold two separate trials of those accused of orchestrating fighting between supporters of Kenya’s Orange Democratic Movement, ODM, and the Party of National Unity, PNU, which broke out following the presidential election in December 2007. The two cases are divided according to the defendants’ political allegiances during these events.

The clashes resulted in the death of more than 1,100 people and forced 350,000 others from their homes.

The ICC launched an investigation after the Kenyan state failed to initiate prosecutions itself.

In one case, member of parliament for Eldoret North, William Ruto, and radio journalist Joshua Arap Sang will stand trial on three counts of crimes against humanity – murder, deportation and persecution.

In the other case, Kenya’s deputy prime minister Uhuru Kenyatta and former civil service chief Francis Muthaura, face five counts including murder, deportation, persecution, rape, and other inhumane acts.

The four men were first summoned to appear at the ICC in March 2011, and the charges were confirmed by pre-trial judges on January 23 this year. Judges declined to confirm similar charges against two other individuals – former police commissioner Mohammed Hussein Ali, and ex-minister of industrialisation Henry Kosgey.

In court this week, lawyers representing three of the four defendants proposed a start date after the March 2013 election, a position to which the prosecution agreed.

Both Kenyatta and Ruto have publicly declared that they will be running for the presidency. In a written filing on May 28, Ruto asked judges to consider this factor when setting a trial date.

Only Muthaura – through his British lawyer Karim Khan – objected to a post-election start date.

“We want the trial as soon as possible,” Khan told judges in court on June 12. “My client, Ambassador Muthaura, who is seated behind me, is 65 years old and he wants to remove this stain on his character as soon as possible and enjoy retirement.”

While the prosecution did not object to the trial of Ruto and Arap Sang beginning in March 2013, it requested formal guarantees from the defendants that they would continue to cooperate with the court following the election.

“If it [the trial] is set at such time [after March 2013], we would ask that a written undertaking from the accused be produced so that regardless of the results of the elections, they would appear for trial,” Florence Darques-Lane, prosecuting, said.

The defence teams of Ruto and Arap Sang said their clients would willingly provide such an assurance, but they said it was in any case unnecessary as they had no intention of ignoring summonses to appear before the court.

The lawyer representing the victims of the post-election violence in the case against Kenyatta and Muthaura, Morris Anyah, also supported a March 2013 start – with the proviso that it should have begun by the 9th of that month.

Sureta Chana, Anyah’s counterpart representing victims in the case against Arap Sang and Ruto, said the trial should start as soon as possible in order that the victims obtain justice for the 2007-08 crimes at the earliest opportunity.

The final decision on a start date rests with the judges, who made it clear on June 11 that they had expected the final preparations to be completed before the beginning of 2013.

“I have to confess that this time-frame is not as early as we [Trial Chamber V] anticipated,” Judge Ozaki said.

The start date hinges in part on the prosecution’s disclosure of evidence to the various defence teams. According to court rules, the prosecution must disclose all incriminating and exculpatory evidence in its possession to the defence before the trial starts.

While a schedule for disclosure will be determined by the judges before July 13, the prosecution told the court that it did not anticipate being able to disclose its evidence until early 2013.

Adesola Adeboyejo, for the prosecution, said a start date this year would be “ambitious” due to security threats currently facing prosecution witnesses. Adeboyejo said such threats would hinder disclosure of evidence to the defence and could lead to certain details, such as witnesses’ names, being withheld.

Darques-Lane, prosecuting the Arap Sang and Ruto case, told the status conference that her team would only be ready to fully disclose its evidence to the defence by the “first quarter of next year”.

Another factor determining the trial date discussed this week was the extent to which the two cases should be synchronised. Bearing in mind that the trials will investigate the two sides of the 2007-08 violence, the prosecution said it wanted them to run concurrently, as far as possible, in order to minimise the potential for unrest in Kenya.

“We would want to cool the tensions that may arise [by synchronising the two cases]. This is in view of realities in the country, [in the scenario] that one case has started and not the other,” Adeboyejo said.

Adeboyejo reminded the trial chamber that pre-trial judges had previously synchronised the two cases fo the same reason, and she asked them to pursue the same logic.

Stephen Kay QC, a British barrister who represents Kenyatta, agreed to conducting the two cases concurrently, as he said they would both cover similar events.

However, Khan argued on behalf of Muthaura that his client’s case stood alone, and that his right to a fair and expeditious trial should not be compromised by a need to synchronise it with other cases.

The prosecution also used this week’s conference to inform the defence that it intended to reconfigure certain elements of its cases against Muthaura, Kenyatta and Ruto. It said it wanted to alter the form of criminal responsibility under which it would seek convictions.

“Our application is that indirect co-perpetration is not the sole legal theory that can be used to characterise Mr. Ruto’s individual responsibility. In our view, the facts support that another form of individual criminal responsibility [can be applied],” Darques-Lane said, pointing to a second, broader definition under the court’s governing statute.

The prosecution’s Sam Lowery gave a similar explanation in the meeting concerning Muthaura and Kenyatta. Lowery said the prosecution might also seek to reclassify certain crimes. It might, he said, change allegations relating to acts of forced circumcision and penile amputation – currently charged as “other inhumane acts” – and reclassify them as “other forms of sexual violations”.

Speaking on behalf of victims in the case, Chana voiced her concern that charges relating to destruction of property, looting and causing physical injury were still missing from the charges against Ruto and Arap Sang, despite her pleadings at the confirmation of charges stage. Pretrial judges struck out these charges in March 2011.

Chana asked the trial chamber to either amend the charges themselves or compel the prosecution to do so. However, Judge Christine Van den Wyngaert rejected her request, explaining that the trial chamber was working within the parameters of the charges that were confirmed earlier this year.

The parties were also divided this week on the need to determine the legal definition of an “organisational policy” ahead of the trial. Proving that such a policy existed for the commission of crimes is crucial to the prosecution’s case against all four defendants, as it is part of what gives the ICC jurisdiction over certain crimes. (For more on this issue, see Kenya Cases Given Go-Ahead at ICC.)

The prosecution, together with Khan, representing Muthaura, both argued that the definition of an “organisational policy” could only be determined once all evidence had been heard at trial.

However, lawyers for Kenyatta, Ruto and Arap Sang insisted that the trial judges should settle on a definition prior to the trial. They pointed to the fact that appeal judges have yet to rule on the issue, and argued that their cases would be prejudiced if the definition adopted by the pre-trial chamber when confirming the charges were to be used at trial.

“The matter was of such adequate magnitude that the appeal chamber elected not to determine it and to place it in your hands,” Arap Sang’s lawyer, Joseph Kipchumba Kigen-Katwa, said. “And we pray that you will take up the prescription by the appeal chamber and have that issue determined, to enable us – as we submitted in our filing – to know the contours of the charges.”

Judges said they would consider the arguments made by the parties and reach a decision in due course.

Nzau Musau is an IWPR-trained reporter in Nairobi.