Uhuru, Ruto strategy to delay trials

By Wahome Thuku

KENYA: Jubilee presidential candidate Uhuru Kenyatta and his running mate William Ruto’s legal strategy is to delay their cases by poking holes at the ICC Prosecutor’s handling of the matter.

At The Hague’s status hearing yesterday, it came out clearly that Uhuru and Ruto are convinced the charges have changed fundamentally from what was confirmed, and the witnesses have also changed, affecting their defence strategies.

They also argue that late disclosure of the evidence against them gave them insufficient time to prepare for the trials set to begin on April 10 and April 11.  If the two have their way, it would mean that the cases against them would start several months after the March 4 elections, for which the pair is deemed a serious contender.

It would also mean that in case of a run-off — which is scheduled for the time they would be required to be at

The Hague for the trials — and Uhuru is in the second round, the two would be in Kenya campaigning without worry over The Hague fetters.

Uhuru and Ruto’s defence teams argued for a delay of the cases citing legal and technical hurdles, including late disclosure of crucial evidence by the prosecution.

Uhuru, Ruto and their co-accused, Mr Francis Muthaura and Mr Joshua Sang, argued the evidence supplied by the prosecution established new dates of incriminatory meetings and build new cases.

Defence lawyers Karim Khan and Stephen Kay complained that the prosecution was supplying them with large volumes of new material and fresh evidence that had not been used during the Pre-Trial.

Changed case

They argued that the disclosures had completely changed the cases against their clients, Muthaura and Uhuru respectively.

Khan, for Muthaura, said: “The prosecution is not taking the disclosure seriously. It is our feeling that we cannot have a fair trial in April, when the prosecution has been hiding some cards under the table, while urging the chamber to proceed with the trial at their whims.”

Uhuru’s lawyer Kay added: “The disclosure has not taken place yet the prosecution has abandoned some witnesses and completely changed the nature of the case. This is not the same case we faced at the pre-trial chambers; we now have a very new case.”

“We need a complete picture of our case,” said Sang’s lawyer Katwa Kigen in seeking a deferral.

But the prosecution countered the case “remains fundamentally the same.”

However, the lawyer representing the victims pleaded with the court not to accept unnecessary applications that would delay the trials.

The applications were made during the status conferences to assess the preparations for the trial at The Hague. However, whereas Muthaura and Sang were in the courtroom, thousands of miles from Kenya, Uhuru and Ruto participated in the Valentine Day’s proceedings through a video link from an undisclosed location in Nairobi. It is believed they did so inside Unep Headquarters in Gigiri, Nairobi.

Political programme

The new developments could favour political programmes of Uhuru and Ruto. To go around the dilemma of their trials overlapping with a runoff if it will be there, Uhuru and Ruto yesterday also applied to the court to be allowed to participate in the trial from Kenya through video link as they had done so yesterday.

Uhuru and Ruto’s lawyers will argue on the practicalities of participating in the trial through video communication link to The Hague, a factor that could solve one of the biggest headaches for the two.

It could also be supported by assurance from the Trial Chamber V judges they could continue enjoying their freedom during the trial so long as they fulfill set conditions.

The Trial Chamber V judges hearing the two cases sprung up its own unique challenge by saying that though they would have wished to grant the request for two parallel court-rooms and bench for the cases to run separately, lack of courtrooms at the International Criminal Court made this impossible.

This is the request the two sought so as to allow them to be at The Hague on different court business calendars, which would then mean one of them, in case they win the Presidency, would be in the country when the other is attending trial. However, their preference was also to be allowed to take part through video link from Kenya.

Uhuru is charged in Case Two with Muthaura while Ruto is charged in Case One with Sang. Yesterday, Uhuru’s defence team asked for indication as to the anticipated time that the two cases would take. “The Chamber is mindful of the right of the accused to be tried without undue delay in the interest of the parties, the victims and justice,” Presiding Judge Kuniko Ozaki said.

She said the Chamber was of the view that two chambers should be constituted to conduct parallel trials of the two cases.

It emerged that the judges have been harbouring their concerns over the logistics in handling the cases since June 2012. They have been in communication with the President of the ICC Judge Sang-Hyun Song recommending that a second chamber be constituted.

“The chamber is still waiting for the decision of the Presidency and it will notify the parties as soon as it’s informed of that decision,” she said.

The Trial Division of the ICC has only six judges while Chamber V comprises of Justices Kuniko Ozazi (Japan), Chile Eboe-Osuji (Nigeria) and Christine Van den Wyngaert (Belgium).

Another bench

It is almost certain that Kenya’s Justice Aluoch would not be included in a bench to hear the Kenyan cases due to conflict of interest.

Besides the composition of the bench, Chamber V revealed another constraint because it has only one courtroom that can accommodate a case with more than one suspect.

This means even if another bench was set up, the two would share Courtroom Number One. Justice Ozazi said the only option available would be for them to sit for four hours a day in each case if they were to expedite the trials.

According to the ICC schedule of hearings the chambers sit from 9am to 1.30pm.

Uhuru and Ruto have insisted they will properly run the country while still attending the trial. They have been counting on the fact that their cases cannot be heard simultaneously by one bench. That would then enable one of them to be in the country while the other is in The Hague.

Parallel trials would expedite the cases but complicate matters for Uhuru and Ruto should they be elected, as they would be required to be in The Hague together and for months.

Article 63 of the Rome Statute states that the accused must be pres- ent during the trial. Lawyers have been arguing that the Ruto case would be heard before Kenyatta’s so that the

Chamber can grasp the chorology of events.

The Chamber asked Uhuru to file written submissions of the application citing legal basis and the practical modalities by February 28.

The prosecution said they were leaving the question of the trial dates to the Chamber only adding that they had proceeded in a thorough and comprehensive manner. The judges said they would decide on the trial dates taking into considerations the submissions by the parties.

The registrar informed the Chamber it had been informed by the host country that the suspects could stay there for 12 months.