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Kenyan Suspects Seek ICC Trial Delay

Defence lawyers say sheer amount of new evidence makes it impossible to prepare cases by April as scheduled.
By Judie Kaberia
  • Francis Muthaura in court on February 14. His co-defendant in the Kenya 2 case, Uhuru Kenyatta, participated via video link from Nairobi. (Video still: ICC)
    Francis Muthaura in court on February 14. His co-defendant in the Kenya 2 case, Uhuru Kenyatta, participated via video link from Nairobi. (Video still: ICC)
  • Joshua arap Sang in court on February 14. His co-defendant in the Kenya 1 case, William Ruto, participated via video link from Nairobi. (Video still: ICC)
    Joshua arap Sang in court on February 14. His co-defendant in the Kenya 1 case, William Ruto, participated via video link from Nairobi. (Video still: ICC)

Lawyers for four Kenyans facing trial for crimes against humanity at the International Criminal Court, ICC, have asked judges to postpone the start of proceedings currently scheduled for April 10 and 11.

At two pretrial hearings held in The Hague on February 14, defence teams argued that the prosecution had failed to disclose evidence to them on time, thus hindering trial preparations and their ability to build a case.

Member of parliament William Ruto, radio journalist Joshua Arap Sang, Deputy Prime Minister Uhuru Kenyatta and former civil service chief Francis Muthaura are charged in two separate cases, known as Kenya 1 and Kenya 2 and with two defendants each. They are accused of orchestrating the violence which engulfed Kenya after the disputed 2007 presidential election.

More than 1,100 people were killed in late 2007 and early 2008 as fighting erupted along ethnic lines.

Former political foes Kenyatta and Ruto are now allied with one another in a bid to form Kenya’s next government, with Kenyatta aiming for the presidency in the March 4 elections, with Ruto as his running-mate.

Both men participated in the hearings via a video link from Nairobi.

In a stinging attack on ICC procedures, British lawyer Karim Khan, who represents Muthaura, told the court that he could not be ready to proceed with the case in April because of the large volume of evidence handed to him by the prosecution last month.

“The amount of new material, in our calculation, amounts to 4,466 pages completely new, which is 68.7 per cent [of the case],” he told the bench of three judges in The Hague.

Khan further accused the prosecution of a succession of violations of its obligations to disclose evidence to the defence on time.

“On the eve of trial, ‘Hey presto!’ – like a rabbit out of the hat – they come up with new allegations that simply have not been investigated,” Khan said.

He told the court that his team also needed more time to expose witnesses who he claimed were “lying” to the court.

“The critical witnesses of the prosecution are coming to this court to lie. “We need time to expose these lies,” he said. “We cannot have a fair trial in April.”

Kenyatta’s defence counsel, Steven Kay QC, also asked judges to postpone the start of the trial on the grounds that more time was needed to look at new evidence released by the prosecution.

“We are asking this court to suspend the principle of expediency and the right of expedition, to enable us to have adequate time to prepare our defence as well as to have proper disclosure during that period so that we prepare for the trial,” Kay said.

Kay told judges that the nature of the prosecution’s case had changed significantly since charges were confirmed against his client in early 2012.

“It’s not the same case we faced at the confirmation of charges hearing,” he said.

The prosecution said it was ready for trial but did not oppose the defence’s request for a delay, and would be directed by the judges’ decision. It denied breaching its obligations concerning the disclosure of evidence to the defence.

“Our disclosure process has been entirely within the court’s rulings and parameters, namely disclosure of witnesses,” Manoj Sachdeva said on behalf of the prosecution. “The court has given us up to March 11, which is one month before the trials, to disclose the identity of our witnesses. We leave the matter of the start date in your honours’ hands.”

Judges will rule on the postponement request after reviewing submissions by all parties.

A legal representative of the victims, who was in court, opposed any delay, arguing that those who suffered during the 2007-08 violence should get justice as soon as possible.

In the second hearing of the deay, lawyers David Hooper and Joseph Katwa-Kigen, who represent Ruto and Arap Sang, also requested a postponement of the start of the trials. They claimed the case had changed and noted that a number of prosecution witnesses had been dropped.

Lucio Garcia, for the prosecution, rejected the claim that its case had shifted significantly.

"There hasn't been shifting sands in this case at all, and defence counsel know that full well," he told the court.

Asked by the judges about a revised start date for the trial, in the event that one was offered, Katwa-Kigen said he would need four months from the date that the prosecution disclosed all of its evidence.

Discussing how the two cases will be run by the court, Judge Ozaki noted that there were various constraints, including limited courtroom space and the workload of the judges on the bench.

Ozaki is currently hearing the case of former Congolese vice-president Jean-Pierre Bemba while his colleague Judge Christine Van den Wyngaert, is on the bench that is considering its verdict in the trial of former Congolese rebel leader Germain Katanga.

The chamber has applied to the court’s president to appoint a second new set of judges, so that the two Kenyan cases can be heard by separate benches.

Because only one of the ICC’s courtrooms is big enough to accommodate a trial with two defendants, judges are also recommending that each case be heard for four hours a day, one after the other.

“We have been in communication with the presidency, recommending in particular that additional judges be assigned to compose two separate chambers,” Judge Ozaki said. “As all parties are aware, this court faces logistical challenges including availability of courtrooms. Use of Courtroom One is the only option.”

The judges will await a decision from the president.

Judge Ozaki also used the two hearings to confirm that the conditions relating to the defendants’ appearances before the court will remain the same.

For the first time in a live case, the ICC has not issued arrest warrants against the defendants. Ozaki said the summonses to appear that are currently in place will continue in effect during the trial.

Under the terms of these summonses, defendants are barred from contacting victims or witnesses in the case, and must not obstruct or interfere with the attendance or testimony of any witness, or with the prosecution’s investigations.

Kenyatta, Ruto and Sang asked judges to allow them to participate in proceedings via video link, once the trials get underway. Judge Ozaki asked each to submit written arguments on this by February 28.

Judie Kaberia is a reporter for and Capital FM in Nairobi. Kris Kotarski, social media editor for IWPR's International Justice Programme, also contributed to this report.

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

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