The Argentine lawyer was also ordered to fix location and time before this date where he will open up his evidence to the defence teams as provided for by the court rules.
He also was given a timeline within which he must come up with justification for concealment, withholding or obscuring of certain aspects of his evidence that he deems too sensitive to be let out to the suspects and their lawyers.
It must have been a setback for the man who is seeking crimes against humanity trials against six high profile personalities over alleged role in 2008 post-election violence as the court dismissed his bid to withhold his evidence.
In a ruling issued on Wednesday, the judge heading the Chamber dealing with the two cases involving the Ocampo Six ruled the arguments presented by the prosecutor to keep his evidence have no legal basis, and "should be rejected without further consideration".
She ordered him to keep to a strict timeline to disclose his evidence to the defence teams that are also supposed to reveal their evidence to the prosecution.
"The prosecutor’s request does not have a legal basis in the applicable law. As such, it must be rejected without further consideration," she declared.
No impedimentThe judge said that the challenge presented by the Kenya Government over the admissibility of the cases was not an impediment to the progress of the cases as Moreno-Ocampo had argued. She said the case by the Government could only affect new investigations but has no bearing on the progress of the cases already filed.
"Neither the Statute nor the Rules of Procedure and Evidence (the "Rules") provide for suspension of prosecution, or any impediment to disclosure, following a challenge to the admissibility of a case," she said.
The Government has filed an application at The Hague arguing the ICC should refer the cases back to Kenya. The prosecutor found this to be a possible issue that Ocampo could raise to keep his evidence to himself instead of sharing it with the defence, as is required by the Rome Statute.
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Ocampo gave the first indication that he was reluctant to share the evidence when the Six made their first appearance at The Hague. The Chamber had, however, overruled the prosecutor and ordered him to release all the evidence to the suspects so that they can prepare for the confirmation hearings.
The prosecutor then filed the application, which has now been rejected, by the court. This is the third time the prosecutor is taking a blow from ICC judges.
The first was when the judges left out part of the charges he had lined up against Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura and former police commissioner Maj-Gen (rtd) Hussen Ali. They are lumped up under one case. The second batch has Eldoret North MP William Ruto, Tinderet MP, Henry Kosgey and Kass FM morning show presenter Joshua arap Sang.
The second time was when the judges rejected an appeal the prosecutor filed seeking to reinstate the charges relating to the security killings in Kisumu and Naivasha against Uhuru, Muthaura, and Ali.
In the application rejected by the judges, which was reported in Wednesday’s edition of The Standard Ocampo, had even cited comments made by Kenyan politicians and some of the suspects in an attempt to strengthen his argument that he should keep his evidence confidential.
Ocampo had claimed the security of his witnesses would be jeorpadised or compromised were he to share his evidence with the defence lawyers.
Judge Trendafilova rejected Ocampo’s arguments as she also set out an elaborate schedule that the prosecutor and the defence lawyers have to stick to as they share evidence in preparation for the confirmation hearings that begin on September 1.
"Having found that the disclosure proceedings are not to be suspended pending the admissibility challenge, the Single Judge will now address the calendar for disclosure between the parties," the judge wrote.
The judge ruled Ocampo should disclose by May 13 all evidence that he wants to disclose without any editing if such evidence was collected before December 15, last year, when he presented the cases to the judges.
The prosecutor, should, the judge said, "submit properly justified proposals for redactions, if any, with respect to the evidence that has been collected prior to December 15, last year, no later than Friday, May 13."
Documents and photosIn the case of evidence that the prosecutor wants to disclose but after redacting should be revealed no less than five days after the court is informed, the judge went on.
The prosecutor is also required to allow the defence teams to inspect by May 13, at a location and time agreed with him, "any books, documents, photographs, and other tangible objects in his possession or control which either he intends to use at the confirmation of charges hearing."
In the case of evidence collected between December 15, last year, and March 11, Ocampo is required to have fulfilled the orders on disclosure by June 3, if such evidence does not require redaction.
Ocampo is also supposed, "to submit properly justified proposals for redactions, if any, with respect to the evidence that has been collected between December15, 2010 and March 31, no later than Friday June 3."
The prosecutor has also been ordered to disclose all evidence collected after March 31, not later than July 8.
The judge directed Ocampo should "disclose to the defence all evidence in his possession or control under Article 67(2) of the Rome Statute as soon as practicable on a continuous basis".
Justice Trendafilova also issued orders to the defence lawyers to stick to the schedule on evidence sharing.
The defence should "disclose to the prosecutor the evidence they intend to present at the confirmation hearing, if any, and to file the list of such evidence, no later than Tuesday, August 16," she ruled.
If the lawyers require making any redactions to the evidence they want to disclose to the prosecutor, they are supposed to submit properly justified proposals for the editing no later than August 22.
They are also supposed to allow the prosecutor to inspect, just like he is supposed to do for them, exhibits that include documents, photographs, and tangible objects they want to use during the trial.
They were also ordered to "notify the prosecutor of their intention, if any, to raise the existence of an alibi or to raise a ground for excluding criminal responsibility, and to present the evidence on which they intend to rely for either purpose, within the meaning of Rule 79, sufficiently in advance to enable the prosecutor to prepare adequately and to respond."
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