Sigh of relief for Ocampo Six

By Evelyn KwambokaInternational Criminal Court Prosecutor Luis Moreno-Ocampo has lost another attempt to delay disclosure of evidence to the six Kenyans he wants tried for crimes against humanity.
Judge Ekaterina Trendafilova, in what must be a relief for the Ocampo Six, argued the court expects the Prosecutor to have already conducted a preliminary risk assessment in relation to witnesses on whom he intends to rely on for the purposes of the confirmation hearing.
The prosecutor had claimed that releasing the evidence would expose his witnesses to risk. "Furthermore, in case of changes of circumstances that make redactions (editing of sensitive parts of a document before release) previously authorised no longer necessary or proportionate, such redactions can be lifted by the Chamber on its own motion or upon requests of the parties," the judge ruled.
The rejection of the application yesterday becomes part of several losses he has faced before Pre-Trial Chamber II as he sought to block defence teams for the six suspects from accessing his cache of evidence in line with the court’s rules.
Ocampo, according to the ruling by the Justice Trendafilova, will now have to share the evidence he has against Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, Head of civil Service Mr Francis Muthaura, Tinderet MP Henry Kosgey, former Commissioner of Police Hussen Ali and Kass FM radio presenter Joshua Arap Sang with their defence teams.
The prosecutor had filed the application even after Judge Trendafilova rejected several other applications in which he made the same request.
When the chamber rejected the fourth application, the judges had said that it would be prejudicial for the case facing the Ocampo Six, for anyone to raise arguments, which have been previously rejected.
Even though the Judges did not say Ocampo was prejudicing the case against the suspects, they could only have been referring to his attempts to raise the same arguments he had raised earlier to bar the defence from the evidence in his possession.
The decision by the judges is now expected to clear the way for the two separate confirmation hearings that are set to begin on September 1 for Ruto Kosgey and Sang and September 23 for Uhuru, Muthaura and Ali.
Time to edit
In his application, the Prosecutor wanted the calendar for sharing of evidence reviewed and asked for more time to edit what he planned to share with the defence teams. This would have delayed the confirmation hearings.
The court rejected Ocampo’s request for a further 21 days to complete editing, and instead ordered him to hand over by May 23 evidence collected prior to December 15, 2010.
"The 21 days of extension requested by the Prosecutor are not necessary and that the Prosecutor will be able, by Monday, 23rd May 2011, to complete his work with respect to the redactions to he requested for evidence that has been in his domain," said the judge. She pointed out that Ocampo handled the evidence for a protracted period of time of between five and 13 months as the evidence was collected since March 31, 2010 until December 15, 2010.
Ocampo is expected to edit out the identities of victims who are among the 20 prosecution witnesses and the names of hospitals where they were treated.
The judge said she would guarantee that the right of the suspects to have adequate time for the preparation of their defence is fully respected, and no prejudice is caused by the change of dates from May 13 to 23. The court had earlier ordered that May 13 should be the date when the evidence collected before December 15 must be shared. Ocampo filed the application on May 2, a day after the Justice Trendafilova dismissed his appeal against her ruling that he disclose all the evidence.
The Prosecutor had argued that in view of the steps he is taking to ensure witnesses are protected, it would be premature for him to decide what to edit from his evidence, and wanted the chamber to allow him delay the disclosure of evidence. The Prosecutor wanted to submit proposals for redactions in two stages, with the first group on June 3, and the last one on July 8. It was the prosecution’s case that reviewing the huge bulk of materials would be a waste of time.
The evidence was collected in two phases, with the first one containing 1,038 documents being done before December 15 last year, and the last one between December 15, last year and March 31, this year, in which Ocampo collected 30 documents.
Ocampo said the calendar requiring him to disclose evidence from May 13 affects his right to a fair trial. The prosecution is required to review, by May 23, some 595 documents constituting 10,878 pages or nearly 99 per cent of the total number of documents to be disclosed in an edited form.
In the case of Uhuru, Muthaura and Ali, the judge said it seems Ocampo was seeking a reconsideration of the calendar of disclosure.
The three are lumped together in one case while Ruto, Kosgey and Sang are in the other. The prosecutor has a total of 20 witnesses to rely on in support of his case at the confirmation of charges hearing. The first blow to the Prosecutor was when he lost his bid to have more strident conditions slapped on the suspects.
Nothing changed
The court ruled nothing had changed to warrant the six to declare their wealth and post bond as an assurance to their appearance before the court at The Hague.
In his quest to protect his witnesses, the court dismissed his application, forcing him to file an application seeking the court’s permission to appeal against that decision. Ocampo said in the application that it was unfair to require him to disclose all his evidence when the confirmations of the hearings were still 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.
Judge Trendafilova dismissed him on grounds that the court did not order him to prepare an in-depth analysis that included exonerating evidence. The Judge also ruled Ocampo’s argument was based on a misconception that did not constitute a subject for resolution by the court.
She pointed out 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 or expeditiousness of the proceedings.