ICC Sets New Kenya Trial Date

Tuesday, 4 June, 2013

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Judie Kaberia

Judges at the International Criminal Court, ICC, have rescheduled the trial of Kenyan deputy president William Ruto for September 10.

They also said they would consider whether some of the case could be heard in Kenya or in neighbouring Tanzania.

Ruto and former radio presenter Joshua Arap Sang are charged with orchestrating the violence that unfolded in the aftermath of Kenya’s general election in December 2007.

The start date also applies to Sang.

Both men face charges of murder, deportation and persecution of sections of the Kenyan population during more than two months of political and ethnic violence across large parts of the country. More than 1,100 people died in the violence and 650,000 were forced to flee their homes.

Kenya’s new president, Uhuru Kenyatta, faces trial in a separate case.

The new trial date for Ruto and Sang follows a series of delays to the case, which was meant to get under way on April 10.

Judges said that the September date gave the two men’s defence teams ample opportunity to prepare, after prosecutors failed to disclose evidence and the identity of witnesses on time. Ruto’s lawyer requested last month that the trial be delayed until November.

In a separate recommendation to the ICC’s presidency on June 3, judges gave their views on a request lodged by Ruto and Sang in January to hold the trials in Kenya or Tanzania rather than in The Hague.

Kenya’s new president, Uhuru Kenyatta, who faces trial in a separate case, has made a similar request, but judges have yet to issue a response.

Expressing support for the idea in the Ruto and Sang case, judges said they had asked the registry to explore the “practical aspects” of holding certain parts of the cases in the region.

“It may be desirable to hold the commencement of trial and other portions thereof, to be determined at a later stage, in Kenya or alternatively in Tanzania,” judges wrote.

The judges said they recognised the benefits of holding hearings near to where the alleged crimes occurred, as well as close to the victims and others affected by the bloodshed of 2007 and 2008. But they also noted concerns raised about the safety of victims and witnesses, as well as the need to limit any outside influence on the case.

“Therefore, the chamber considers that the holding of the commencement and other portions of the trial particularly in Kenya would strike the right balance,” the judges wrote. “The chamber will at the relevant time revisit the possibility of holding portions of the trial in Kenya, subject to security and logistical considerations, and taking into consideration the rights of the accused to a fair and expeditious trial, as well as the victims' views and concerns.”

Prior to making their views known, the judges had called for input from the prosecution, the ICC’s registry, and the legal representative of victims in the case.

They had also asked the Kenyan and Tanzanian governments to submit views on holding the trials in their respective countries, and consulted the International Criminal Tribunal for Rwanda in the Tanzanian town of Arusha on whether it might host the proceedings.

Both defence teams have suggested holding the trials at the Rwandan tribunal, but the Tanzanian government has not yet given its view on the matter.

“The chamber recommends that Tanzania should continue to be explored as a very good alternative for the hearings, in view of the availability of ready-made, international-standard court facilities at the [Arusha tribunal],” judges wrote. “To that end, renewed efforts should be made for purposes of generating a reaction from the government of Tanzania.”

Prosecutors told judges that while they were in favour of the case being heard in Arusha or in Kenya, they were concerned about the security of witnesses and victims. They argued that witnesses would be uncomfortable testifying inside the region.

The legal representative of the victims, Wilfred Nderitu, opposed the request after interviewing 50 victims, 41 of whom said they wanted proceedings to be held in The Hague because of fears about security, intimidation and further delays to the case.

The registry suggested to the judges that the Rwandan tribunal would be the best venue for trials outside The Hague. But it noted the logistical issues such as witness protection measures and interpreters that would need to be addressed for this to happen.

Kenya’s attorney general, Githu Muigai, has written to judges saying his country is willing to facilitate hearings inside Kenya. The court has received a similar commitment from the Rwandan tribunal.

In the ruling rescheduling the start of the trial for September, judges Chile Eboe-Osuji, Olga Herrera Carbuccia and Robert Fremr, also allowed prosecutors to add two witnesses back to their case.

The prosecution had made the request after security concerns prevented it from disclosing these witnesses’ identity to the defence at the prescribed time, and it had to withdraw them as a result.

Edited versions of the witnesses’ evidence was disclosed to the defence in November 2012 and January 2013.

However, judges rejected a prosecution request to add a further three witnesses to its case even though it argued that they could provide "new and compelling evidence". Prosecutors said the additional witnesses might be needed because three current witnesses had complained of security worries and were unsure about testifying.

Judges said that since the latter witnesses had not declined to testify so far, the prosecutor’s request was premature.

Judie Kaberia is Kenya Coordinator for ReportingKenya.net and Special Projects Reporter at Capital FM in Nairobi.

This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with Capital FM.