Why Uhuru, Ruto trials may move to August

By FELIX OLICK

Kenya: The Hague Prosecutor Fatou Bensouda is not opposed to application for a three-month delay of trial by Jubilee flagbearer  Uhuru Kenyatta and his running mate William Ruto.

But at the same time she insists she is ready to prosecute them for crimes against humanity from April 10 and April 11, if the judges do not grant the request by the Kenyans.

The new development came even as Bensouda agreed that the case against former Head of Civil Service Mr Francis Muthaura might be referred back to the Pre-Trial Chamber for reconsideration.

But with her willingness to accommodate the request by the four accused Kenyans, Bensouda could have given the judges reason to grant it, even though this will have to be considered alongside objection by the lawyers for victims who insist on a speedy trial.

If granted, the trials would then start in August, meaning Uhuru and Ruto, would go into next week’s election confident that even if there is no clear winner and they take the first or second slot, the run-off in April will see them in the country freely campaigning.

The postponement of trials if granted could significantly influence their campaigns because the two are not only serious contenders as shown by opinion polls, but also because in case of run-off under the current court schedule, they would have to be away at The Hague as per court rules.

In case there is no clear winner between Uhuru and his main opponent, Coalition for Reforms and Democracy Presidential candidate Raila Odinga, a run-off election is scheduled a month after Monday’s presidential vote, which coincides with the start of The Hague trials against the two.  Ruto and Uhuru cited their participation in the presidential election to press for a postponement of their trial with Ruto’s defence team calling for a three-month delay.

In submissions to the Trial judges, Bensouda said although the prosecution was ready to proceed with the trial as scheduled, she was not opposed to a delay.

She suggested trials are put off until August 2013 but the Trial Chamber V judges will rule on the applications.  In her response to the defence request for postponement of the trial start dates, Bensouda recommended that the trials can start in August — five months after next week’s General Election.

Bensouda said that her office recognises a variety of logistical constraints that make April 10 and 11schedule unlikely although her office was ready to proceed with the case. “The Prosecution is ready to proceed as scheduled. At the same time, the Prosecution recognises that a variety of logistical constraints make a trial on 10 April 2013 unlikely,” Bensouda said

“Therefore, the Prosecution does not object to a reasonable adjournment, but recommends that the Trial Chamber set a new date now to provide more certainty for the parties and victims,” she added. Initially, the three-judge bench had set April 10 as the start date for the first case against Ruto and former Radio Journalist Joshua Arap Sang. That against Uhuru and Muthaura was to start a day later.

The four Kenyan suspects had argued that they needed more time to prepare their cases citing late disclosure of prosecution materials, revision of charges and removal or addition of witnesses.  “It is submitted that such extensive late disclosure, which is still continuing, was anticipated by neither the defence team nor the Chamber. In those circumstances, the defence invites the Chamber to consider providing it with more time to prepare its case,” Ruto’s lawyer David Hooper had argued.

They also maintained that the cases against them had changed fundamentally from what was confirmed, and the witnesses have also changed, affecting their defence strategies. Bensouda suggested to the Trial Chamber V Judges the trials can kick off immediately after the Court’s summer recess. According to the Court’s calendar, the summer recess starts from Friday, 19 July 2013, until Monday, 12 August 2013.  

The request would be granted or rejected by the bench headed by Presiding Judge Kunikop Ozaki. Recent opinion polls have predicted that Uhuru and Raila are neck and neck in the presidential race and neither of the two would win the vote in the first round. However, given uncertainty of polls and the dynamic and ever-changing nature of political trends, the first round could still produce a winner but albeit with a very narrow margin.

According to transition timelines, the president-elect shall be sworn in on March 26. But if the request is granted, the two would be available even if the vote scheduled for Monday next week spills into a run-off and the presidential results are further challenged in court.

DEADLINES

However, the prosecution insisted it has carried out its disclosure in accordance with the deadlines set by the Chamber, “notwithstanding the unprecedented level of witness tampering in the cases and the associated witness security challenges.”  “The facts alleged in the Prosecution’s pre-trial brief fall within the four corners of the charges confirmed by the Pre-Trial Chamber and contained in the Updated Document Containing the Charges,” she argued while rebutting the accusations by the defence teams.

Uhuru and Muthaura had argued that the case advanced against them by the prosecution had metamorphosed adding that it was based upon new and untested evidence obtained after confirmation of charges.

The two had also requested that their case be referred back to the pre-trial chamber after the prosecution dropped a key witness that linked them to alleged meeting at State House where Mungiki members attended.

But in another response to the defence request, Bensouda requested the judges to dismiss Uhuru’s application but agreed that Muthaura’s application can be considered.