CC judges pick The Hague for Kenya hearings

By Evelyn KwambokaThe confirmation of charges hearings against the ‘Ocampo Six’ due in September would be held at The Hague and not in Nairobi.
This follows a ruling by the ICC Pre-Trial Chamber II judge Ekaterina Trendafilova. Of the six, only Tinderet MP Henry Kosgey wanted the hearings held locally. Another accused, Head of the Civil Service and Secretary to the Cabinet, Francis Muthaura, wanted the hearings in Arusha, Tanzania.
The others are Eldoret North MP William Ruto, radio journalist Joshua Sang, Deputy Prime Minister Uhuru Kenyatta and Postmaster General Hussein Ali. All six suspects, accused of crimes against humanity by ICC Prosecutor Luis Moreno-Ocampo, will now have to bear the cost of travelling to The Hague for the hearing of confirmation of the charges.
Meanwhile, Pre-Trial Chamber II judges Trendafilova, Cuno Tarfusser and Hans-Peter Kaul have also dismissed the Government’s bid to have access to Moreno-Ocampo’s evidence against the suspects.
The judges ruled that there was no convincing evidence to prove the Government had initiated investigations on post-election violence against the suspects.
confirmation of charges
The Government wanted Moreno-Ocampo’s evidence to assist it carry out investigations locally.
Justice Trendafilova’s decision ends debate on where the confirmation of charges hearings in September would take place.
"The Single Judge, wishes to inform the parties and the applicant victims that the Chamber, for its part, being respectful of their wishes as expressed in the respective submissions, will not consider further the option of conducting the confirmation of charges hearing in the Republic of Kenya," she said.
The judge asked Moreno-Ocampo and the six suspects to indicate to the court by July 12, whether they wish to call any witnesses to issue testimonies in their favour.
Those who have live witnesses would be forced to submit information detailing the subject matter and scope of the proposed testimony of each witness.
"In any event, absent any decision to the contrary (by the president), the confirmation of charges hearing in the present case will take place at the seat of the Court in The Hague."
"The Single Judge wishes to inform the parties that, should they fail to communicate their intention to call witnesses by the deadline hereby established, it would not be possible to finalise the necessary arrangements before the confirmation of charges hearing," Justice Trendafilova said.
The judge told the parties to the Kenyan case that although oral testimony is permitted, the confirmation of charges hearings could be based on witnesses’ written statements.
"The Single Judge expects the parties to rely on live witnesses only as far as their oral testimony at the hearing cannot be properly substituted by documentary evidence or witnesses’ written statements," said Judge Trendafilova.
Article 68(5) of the Rome Statute and rule 81(6) of the court permit that both the Prosecutor and the Defence submit only a summary of evidence with a view to preventing disclosure of information that might put at risk witnesses or their families.
On Wednesday, the judge considered that the Prosecutor and the Defence teams would comply with the present order, given that all the relevant information for an informed decision to be made would be in their possession well in advance of the deadline.
The judge expects Moreno-Ocampo, who triggered the proceedings, to review his evidence.
The confirmation of charges hearings are to be held on September 1 for Ruto, Sang and Kosgey, and on September 21 for Uhuru, Muthaura and Ali to determine if there is sufficient evidence to commit them to trial.
Kosgey had supported the holding of his confirmation of charges hearing in Kenya by judges of the International Criminal Court, because it would have been less costly for him.
Kosgey differed with the stand of four of six suspects accused of crimes against humanity.
Financial assistance
Ruto, Sang, Uhuru, Ali, Moreno-Ocampo preferred hearings at The Hague.
Muthaura’s lawyer said he preferred Arusha because it is close to Kenya and has the experience after hosting high profile cases for the International Criminal Tribunal for Rwanda (ICTR). He said the ICTR is the viable alternative since there is infrastructure for the court.
"Political influence may inflame public opinion if the hearings are conducted locally. Unless the ICC and the Government agree on how to provide security for victims and witnesses, I will not support hearings in Kenya."
Kosgey’s lawyer, Julius Kemboy, said a particular hardship for his client was the daunting prospect of the high cost of travel for his defence counsel and support staff, consultants, family members, witnesses, and hotel accommodation for the confirmation hearings.
"Even if the hardship of costs was to be overcome through financial assistance, there is still the possibility of witnesses declining such a long absence from their local personal engagements in pursuit of a court appearance at The Hague. This can impede his ability to mount a credible defence," Kemboy said.
He said having the hearings in Kenya the court would bring justice to the affected persons.
But Moreno-Ocampo on his part said proceedings could not be conducted away from the seat of the court, unless the judges are convinced security in the new location meets the required standards.
Said Moreno-Ocampo: "It is impossible to assume that the Government of Kenya will provide the essential co-operation and substantial protection to enable an effective continuation of the hearings."
He claimed no security assessment had been conducted that permits the Pre-Trial Chamber II judges to determine that conducting proceedings locally would be in accordance with the Rome Statute.
Moreno-Ocampo opposed hearings in Kenya arguing they would intimidate witnesses and their families.
"Security conditions make it impossible to conduct hearings in Kenya," he claimed.
This, he said, would further restrict the prosecution’s ability to present its case.
Security and protection"Prior to the Chamber’s issuance of summonses to appear, the prosecution received information that organised demonstrations and riots were being planned to protest the Chamber’s decision," he claimed.
Ruto’s lawyers said he is confident the Government can provide adequate security and protection for any court hearings, but the compatibility of the same with the laws of Kenya must first be confirmed.
A local hearing would also delay Ruto’s defence team in relocating its staff from The Hague, said the lawyers. The defence team has a counsel and legal assistant at The Hague to manage a system of the review of disclosure of evidence.