By Wahome Thuku and Evelyne Kwamboka
The Hague Prosecutor stunned Kenya’s defence
teams by readily accepting their call for delay in starting trials, but it now
turns out there could have been a hidden intention.
The defence teams are now mulling over the
assumption of office by a new Prosecutor, taking over from Luis Moreno-Ocampo,
and the fact she has until March when the trials start to tie the loose ends in
the cases she inherits.
Initially it appeared that the prosecution would
adamantly push for trials within weeks and the defence would have to justify
their demand for a date after the General Election, other than the fact that it
would allow the two presidential contenders indicted for crimes against
humanity to run.
But the suspicion among the legal teams for the
accused is that the new Prosecutor, Gambia’s Fatou Bensouda who deputised
Moreno-Ocampo, is using the extended waiting period to fill in the gaps in the
evidence.
They also suspect that the Prosecution could
have found out that its evidence has some gaps and loose ends that need be
addressed, to strengthen its case.
During the extended period, the allies of Deputy
Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto, who are
already on the presidential campaign trail, hoped to use the period to gather a
million signatures to persuade ICC on the popularity of the call to delay the
trial until after polls, ostensibly to boost national unity.
Presidential aspirants
The defence teams for Uhuru, Ruto and other two
accused – former Head of Civil Service Francis Muthaura and Kass FM’s head of
operations Joshua arap Sang – now doubt the prosecutor’s intentions.
This comes as the defence is preparing to fight
any attempts by the prosecution to introduce alternative charges against
presidential aspirants Ruto, Uhuru, and Muthaura. Their legal teams do, in
fact, believe that the prosecutor is gathering fresh evidence on against their
clients.
ICC has in the meantime embarked on an outreach
programme to sensitise Kenyans in the Rift Valley ahead of the trials. The
region was the epicentre of 2007-2008 post-election violence. ICC gave an
assurance, believed to be aimed at taming anxiety in the region that Ruto and
Sang would not be detained at The Hague when trials, which the accused have to
sit through, start.
“No warrants have been issued and the court has
not issued any statements indicating they would be detained. They are free and
remain innocent until proved guilty,” assured ICC field public information and
outreach officer Maria Kamara.
Speaking during a meeting with youths and
leaders at Kampi ya Moto in Rongai, Nakuru County, she dispelled fears the four
Kenyans would be detained when they appear for their cases.
On Tuesday, Sang’s defence lawyer Katwa Kigen
said it clearly shows that the prosecution was not yet ready for the hearing.
“Having the cases heard next year shows that the prosecution either wants to
improve on its witnesses or analyse its documents first,” he argued.
“For Sang, even if we were called tomorrow, we
are ready for the hearing,” he declared.
Katwa told The Standard the defence team is prepared to oppose
moves by the prosecution to ‘re-characterise’ charges against some of the
suspects.
The defence teams say they are opposed to the
prosecution’s move to add alternative charges to those in the Document
Containing Charges confirmed by Pre-Trial Chamber II.
Katwa said they were only waiting for the
prosecution to file its application to raise its opposition.
“The safest thing is to wait for the application
to be filed. I can assure you that it would be opposed by the defence teams,”
Katwa went on.
Security of witnesses
The prosecution is already conducting further
investigations in Kenya to tie up what they describe as matters arising since
the crime against humanity charges were confirmed against the suspects.
Although the prosecution claims its key concerns
are security of witnesses, the defence says they are not since it had access to
witnesses over the last three years, and in fact relocated key witnesses to
secret locations. Other points of disagreement include the disclosure of all
materials and evidence, which the prosecution says will not be complete until
early next year.
“The end of this year would be a very ambitious
timeline because we still have witness security issues, but we want to start as
soon as possible,” said the lead prosecutor on the Uhuru and Muthaura case,
Adeboye Akingbolahan.
The prosecutor said they would have been ready
to start the trials by end of this year, save for the issues regarding
reduction of evidence, disclosure, and protection of witnesses.
“The prosecution will only be ready for trials
once they are sure that their witnesses are safe. Failure to guarantee
witness protection would be devastating to the entire trial,” said
international human rights advocate Lempaa Soyianka.
Katwa said his client wanted a date that would
come after the full disclosure of the material by the prosecution. This would
enable them understand the case they would be facing and respond appropriately.
Criminal law advocate Irungu Kanga’ata said
witness protection schemes must be bolstered during trial and the prosecution
must also ensure they have a good case before the case begins.
Ms Akingbolahan said they had 20 materials ready
for immediate disclosure, but another 680 items relating to witness identities
could only be disclosed after a protocol of reduction had been agreed by the
parties and approved by the court.
Some 1,650-page worth of interview transcripts
from six witnesses were still being processed. Another 560 items were being
reviewed to decide if it would be part of the evidence.
Specific incidents
“An extension of time to next year means the
defence team will meet an equally well prepared prosecution team and this is
not very good for the accused,” another lawyer said
During the status conference last week,
Presiding judge Kuniko Ozaki questioned why the prosecution was still
conducting investigations several months after the four were committed to
trial.
The prosecution argued convincingly that though
it had the same witnesses as those listed at the confirmation hearing, they
were interviewing others due to specific incidents.
The prosecution has until July 4, to make written submissions
on why the charges facing Uhuru, Ruto, and Muthaura should have multiple
characteristics.
source: http://standardmedia.co.ke/?articleID=2000060152&pageNo=3
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