Ocampo loses bid to appeal over evidence disclosure

By Evelyn KwambokaInternational Criminal Court prosecutor Luis Moreno-Ocampo has lost his bid to appeal against an order requiring him to disclose all his evidence against six post-election violence suspects.
Pre-Trial Chamber II judge Ekatrina Trendafilova dismissed the application on grounds the court did not order him to prepare an in-depth analysis that included exculpatory evidence.
Judge Ekatrina on Monday said Ocampo’s argument was based on a misconception that did not constitute a subject for resolution by the court.
She pointed out that Ocampo failed to demonstrate an "issue" within the meaning of the Rome Statute, adding that disclosure of all evidence before hearing the confirmation of charges does not affect the fairness of expeditiousness of the proceedings.
The single judge considered that the prosecutor was expected to organise his office in such a professional manner that he could comply with duties under the Statute timely and properly.
The judge said she was not persuaded by the prosecutor on how disclosure of incriminating and exonerating evidence against Eldoret North MP William Ruto, Tinderet MP Henry Kosgey, Finance Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura, Postmaster General Hussein Ali and radio presenter Joshua Sang in his control, would unfairly hamper his preparations for the confirmation hearing set for September.
"By the same token, the prosecutor has not convincingly put forward any argument why disclosure of exculpatory evidence already in his possession or control may be considered "onerous requirement" warranting the postponing of the confirmation of charges hearing," she ruled.
On the issue of communicating all evidence to the Chamber, the judge said the defence had not complained, adding the suspects had a right to remain silent by not challenging the prosecution’s evidence or producing any at the confirmation of charges hearing.
421 daysIn his application seeking the court’s permission to appeal against judge Trendafilova’s decision, Ocampo said he needed 421 days to review the evidence to comply with orders.
He said it was unfair to require him to disclose all his evidence now, when the confirmation of the hearings are still so far away.
He also said if he were to fully comply with Judge Ekaterina’s order, he would have to review and disclose 12,900 pages of documents.
This, he said, would take him 421 days.
In a response signed and filed at the ICC by Kosgey through his lawyer George Oraro, he argued that if the prosecutor is allowed to appeal against the decision in which he was ordered to disclose his evidence, it would hinder the defence’s preparation of its case.
Referring to ICC’s previous decisions, Oraro said the defence had absolutely no duty to allow the prosecutor to inspect the defence files or have any other form of access to defence information.
"None of the three issues raised by the prosecution affect the fairness and expeditiousness of the proceedings," he said.