ICC Alert: Update On Charges

I think when you see the suspects as scoundrels then surely objectivity has been thrown out of the window!

Otishotish

You should not allow my suggesting that you lack objectivity take away the good work you do. I appreciate where your loyalties lie and respect it too!

The article is rather misleading. Maina Njenga has always been mentioned, even in the first draft of the new DCC. Uhuru's and Muthaura's complaints have been that he was not mentioned "enough". In their submissions, they pretty much wanted Njena mentioned as a co-perp.

41. The defence seeks the replacement of the term "the Principal Perpetrators", with "Mr Muthaura, Kenyatta and Maina Njenga" in paragraphs 33, 34, 74, and 75 of the Updated DCC.

(The judges agree that Maina Njenga should come in for a few more mentions.)

What's more, they did not want anyone to know, whence the fight over the "Annex D". Ironically, by fighting over Annex D, they have ended up with the very situation they were trying to avoid, i.e. the media highlighting (be it somewhat innacurately) their efforts to drag in Njenga.

But the Defence was probably trying to do more than just stitch up Maina Njenga: the Defence appeared to be trying to limit many related references to crimes to just Maina Njenga (difficult to prove in totality) and away from Mungiki in general (easier). Bensouda has been insisting on both. Court gave each half a loaf.

38. As the prosecution's intention appears to be to adjust the language of the Updated DCC to the conclusions of the Pre-Trial Chamber, the Chamber is of the view that the amendment sought by the prosecution should accurately reflect these conclusions. The defence's proposal to add the words "for the purposes of" is thus justified. As regards the reference to Maina Njenga, the Chamber agrees with the prosecution that the removal of the word Mungiki significantly alters the allegation. The prosecution's proposal to refer to both Maina Njenga and the Mungiki is consistent with the Confirmation Decision and, thus, should be included in the Updated DCC.

Similar comments follow elsewhere in the decision.

Likewise, in the case of Ali, the paper has it wrong. The issue was not whether or not Ali was mentioned in the first draft; he was, and nobody objected to that. Rather, the issue was whether the OTP could be allowed to claim, not having done so before, that Muthaura had issued instructions to other coppers. The court has agreed that the OTP can.

54. The defence objects to the allegation, at paragraphs 21, 34, 76, 78, and 86 of the Updated DCC, that Mr Muthaura issued instructions to members of the Kenyan Police other than Major General Mohammed Hussein Ali, for the Kenyan Police not to interfere with the attacks. The defence submits that the Confirmation Decision only contains findings regarding instructions to Major General Ali and nobody else
...
55. The Chamber finds the allegations regarding instructions to members of the Kenya Police other than Major General Ali to be similarly relevant to Mr Muthaura's overall role. As the Pre-Trial Chamber did not reject such allegations, the defence's objection is essentially of the type discussed earlier in this Decision and concems the lack of findings on specific issues in the Confirmation Decision. The lack of such findings should not in principle result in the deletion of the corresponding statements of the facts from the DCC. Furthermore, having regard to (i) the non-confirmation of allegations of the involvement of the Kenya Police in the attacks by its deliberate failure to intervene, and (ii) the fact that the allegations regarding the instructions issued by Mr Muthaura can therefore only be examined in a limited context, the Chamber sees no risk of prejudice to the defence...

If I were a journalist looking to report on interesting points in these decisions: I'd select something like the issue of police actions in Kibera and Kisumu. Jukwaaists may recall that those actions were "dropped" fairly early on. The OPT has always maintained that it would get back to Kibera and Kisumu, and now Bensouda has managed to slip Kibera back in, and we should expect a "full airing" at trial. Naturally the Defence has howled. Unsuccessfully.

29. The defence seeks the removal of the words "and in the Nairobi slums" from the phrase "Muthaura used his position to instruct the Kenya Police not to interfere with the work of the Mungiki and pro-PNU youth in the Rift Valley and in the Nairobi slums" ... The defence claims that neither of the two paragraphs of the Confirmation Decision relied on by the prosecution in support of the allegations mentions the Nairobi slums and also that the reference to the Nairobi slums goes beyond the geographical remit of the case.
...
The reference to the Nairobi slums cannot thus be understood as extending the charges to allegations of crimes committed at that location. In addition, the Chamber notes that the Nairobi slums are only mentioned in the context of Mr Muthaura's alleged instructions to the Kenya Police.

The judges indicate that they will try and keep narrow and limited the focus on these references, but in the world of practicalities I have my doubt. In any case, regardless of views on that, as things stand right now, Kibera is in. Contrary to what the Star article claims, i.e.

Quote: "The trial judges also asked ICC Chief Prosecutor Fatou Bensouda to remove references to attacks in Nairobi slums from the charges against Uhuru and Muthaura."

the judges did not ask for, and there will be no changes, in references to "Nairobi slums":

Decision: "Having regard to these considerations, the Chamber is of the view that the allegation relating to the Nairobi slums can only be examined in a limited context. There is thus no risk of expansion of the charges or prejudice to the rights of the accused. The reference may be retained."

There are also some other interesting points: "looting" is in, penile amputation categorized as "violence" rather than "sexual violence", etc.

There are some interesting points in the Ruto-Sang decision, but I don't consider them to include the naming of the "three commanders", given the conditional nature of that part of the decision. Sang wins one (on some issue of dates) and loses one (in the attempt to restrict his mode of liability). A more interesting point, and it willcome back in the inevitable skirmish over "organization" and the fuzzy "network" is in this statement:

37. The Chamber notes that the Pre-Trial Chamber found in its Confirmation Decision, that "...the intention of Mr Ruto as a member of the group is in itself a sufficient indication of the intention of the group as a whole" ... Conferring the discriminatory purpose of Mr Ruto to the group as a whole, the Chamber considers that the formulation used by the prosecution does not exceed the scope of the charges confirmed by the Pre Trial Chamber.

What exactly?



Did I suggest a mention of Kiusmu in this decision. I simply stated that (a) Kisumu and Kibera issues were considered early on but dropped, and (b) Kibera is no back in.

I think you are trying too hard. In too many things. Slow down.

If Bensouda has any gov't insider as her witness against Hon. Uhuru & Amb. Muthaura then both are screwed. Let's wait for the list.

I'm afraid we won't be seeing any list any time soon. Even where the identities of witnesses have already been revealed to the Defence, the relevant protocols make it near-impossible for the Defence to make them known (at this stage) to the public. Of course, there is the possibility of slipping something to a Matsanga or an Itumbi .....

My reading is that the charges have actually been reduced on the crimes alleged. I have put a summary list together, starting with the lightest charges (Sang) to the heavy duty charges (Uhuru/Muthaura)

Sang

1. Contributing to the commission of murder, deportation or forcible transfer of a population and persecution.

Ruto

2. 'Indirect co-perpetrator in the commission of murder, deportation or forcible transfer of a population and persecution',

Uhuru/Muthaura

3. Indirect co-perpetrators in the commission of five charges, namely; murder, deportation or forcible transfer, rape, persecution and other inhumane acts.

I have been busy trying to secure my position in the rat-race, but I hope to put in some comments in the next few days. A couple of quick ones: I am very, very impressed with Bensouda; I think she has outfoxed the villains (or at least made their lives more miserable than they expected at this stage, which gives me equal delight). I haven't seen anything that would lead me to believe that any charges have been reduced in any way.

What the prosecutor actually submitted on the Jan 9 deadline: As expected, names of some witnesses have not been given to the Defence, and corresponding testimonies have accordingly been redacted. Excellent. Let the villains sweat.

Some bits from public parts of the OTP submissions (both are fairly short but are still not up on the ICC website):

Ruto-Sang Case

1. Pursuant to the Chamber’s 9 July 2012 Decision on the schedule leading up to trial, the Prosecution hereby submits its (i) list of witnesses to be relied upon at trial; (ii) summaries of the main facts on which each witness is expected to testify; (iii) list of evidence to be relied upon at trial; and (iv) pre‐trial brief.

2. Confidential ex parte Annex A contains the Prosecution’s witness list. The Prosecution has indicated the expected duration of each witness’s questioning by the Prosecution. Annex A is designated confidential ex parte because it contains the names of witnesses for whom the Chamber has granted delayed disclosure, or for whom an application is pending.

3. In terms of the expected duration of the Prosecution’s case, the Prosecution estimates that it will require approximately 826 hours of court time. This estimate includes the time projected for (i) the Prosecution’s questioning of its 43 fact witnesses (totaling approximately 383 hours); (ii) the Prosecution’s questioning of the three proposed experts (currently estimated at approximately no more than 30 hours in total); and (iii) the time projected for Defence questioning of the Prosecution’s fact and expert witnesses (totaling approximately 413 hours). To estimate the time needed for questioning by the Defence, the Prosecution has proceeded on the basis that the Defence will use the same amount of time projected for Prosecution questioning. The 826 hour estimate does not include time that the Chamber may grant to the Office of Public Counsel for Victims or the common legal representative to question Prosecution witnesses, or time that the Chamber may use to question witnesses.

4. A confidential redacted version of the Prosecution’s witness list is filed to ensure the effectiveness of in‐court protective measures for witnesses, if sought by the Prosecution and granted by the Chamber.

5. Confidential ex parte Annex B contains summaries of the main facts on which each witness is expected to testify.5 It is designated confidential ex parte because it contains information that may lead to the identification of witnesses for whom the Chamber has granted delayed disclosure, or for whom an application is pending.

6. A confidential redacted version of the witness summaries will be filed contemporaneously to ensure the effectiveness of in‐court protective measures, if sought by the Prosecution and granted by the Chamber.

7. Confidential ex parte Annex C contains the Prosecution’s list of evidence to be relied upon at trial. It is designated confidential ex parte because it contains information that may lead to the identification of witnesses for whom the Chamber has granted delayed disclosure or for whom an application is pending. The list contains 1529 items, and is divided into two parts. The first part contains witness statements and related material (such as annexes to witness statements) and contains 1115 items. The second part contains all other documentary evidence and audio/video material and comprises 414 items. For each item, the
Prosecution has listed the ERN and title, and, for materials related to witnesses, the witness to which the material relates.

8. A confidential redacted version of the list of evidence will be filed contemporaneously to ensure the effectiveness of in‐court protective measures, if sought by the Prosecution and granted by the Chamber.

9. The Prosecution hereby gives notice to the Chamber that in future, it may seek leave to amend the list of witnesses and/or the list of evidence pursuant to the requirements of Regulation 35(2) of the Regulations of the Court if it obtains certain materials that it seeks to tender into evidence or succeeds in securing cooperation of certain witnesses that it has identified that it wishes to interview. These materials and/or persons are the subject of certain governmental and/or institutional restrictions for which the Prosecution has requested cooperation from a number of states pursuant to their co‐operation obligations under Part 9 of the Statute, but which have not yet been received.

10. Pursuant to Regulation 35(2), the Chamber may extend a time limit if good cause is shown, and after the time limit has expired, the extension may be granted if the participant seeking the extension can demonstrate that he or she was unable to
file the application within the time limit for reasons outside of his or her control.

11. The aforementioned governmental and/or institutional restrictions are currently preventing the Prosecution from taking the statements from the identified individuals and gauging their willingness and/or ability to testify for the Prosecution, or from gaining free access to the materials it may wish to tender into evidence, and as such constitute “good cause” within the meaning of Regulation 35(2). The Prosecution has already approached several State Parties, including the Government of Kenya, in order to gain access to such individuals and materials. Discussions regarding the terms and conditions of such access are still ongoing, and for that reason the Prosecution is at this stage unable to file Regulation 35 applications with respect to specific materials and/or individuals. However, the Prosecution is in a position to pinpoint the following groups of materials or individuals that it may wish to add to its lists of evidence and witnesses at a later stage:

 Certain categories of individuals needing specific governmental
authorization to gain access to them.

 Certain individuals who are journalists who produced video material that the Prosecution wishes to tender into evidence during its case, for whom approval is required from their institutions;

 Certain materials, including medical and financial records, requested from the Kenyan government.

12. The Prosecution may also address the Chamber, when and if necessary, pursuant to Articles 93(1)(l) and 64(6)(b) of the Rome Statute, to obtain a request to one or more States Parties to provide assistance with respect to facilitating access to the above mentioned persons and materials or requiring witnesses’ attendance before the Court.

13. Confidential ex parte Annex D contains the Prosecution’s pre‐trial brief. It is designated confidential ex parte because it contains information that may lead to the identification of witnesses for whom the Chamber has granted delayed disclosure, or for whom an application is pending. Many of the citations in the brief are to pages/paragraphs of the witnesses’ pre‐trial interviews. These pinpoint citations are provided for ease of reference, and are merely indicative of the testimony the Prosecution anticipates from its witnesses at trial. The pre‐trial brief is intended as a summary of the Prosecution’s trial evidence; it is not necessarily exhaustive, and the evidence at trial may differ from the summary presented. For the same reason, the Prosecution has not necessarily cited to all of the evidence contained in its list of evidence, but has endeavoured to include some of the main evidence on point for each allegation. A confidential redacted version of the pre‐trial brief will be filed contemporaneously. The Prosecution has endeavoured to draft the pre‐trial brief in order to minimise the need for redactions and to ensure that the Defence is provided with maximum notice regarding the nature of the Prosecution’s case.

Uhuru-Muthaura Case

Largely similar, except for.

3. In terms of the expected duration of the Prosecution’s case,4 the Prosecution estimates that it will require approximately 572 hours of court time. This estimate includes the time projected for (i) the Prosecution’s questioning of its 31 fact witnesses (totaling approximately 262 hours); (ii) the Prosecution’s questioning of the three proposed experts (currently estimated at approximately no more than 24 hours in total); and (ii) the time projected for Defence questioning of the Prosecution’s fact and expert witnesses (totaling approximately 286 hours). To estimate the time needed for questioning by the Defence, the Prosecution has proceeded on the basis that the Defence will use the same amount of time projected for Prosecution questioning. The 572 hour estimate does not include time that the Chamber may grant to the Office of Public Counsel for Victims or the common legal representative to question Prosecution witnesses, or time that the Chamber may use to question witnesses.

Some quick comments:

The Updated Documents Containing Charges have some interesting little bits, but they are still not up on the ICC website, and I'm not inclined to more cut-and-paste, as it requires line-by-line reformatting ... But on the basis of the bits above, from the other documents:

* Some time ago Bensouda (especially during her trip to Kenya) complained loudly about the failure of GoK to cooperate, something that did not surprise us, knowing GoK as we do. A few people claimed that it was because she actually had no evidence, di di da da da. Now she gets the payoff: it is extremely likely that the court will allow her to introduce new witness during time into the trial. GoK's stone-walling has actually increased the uncertainty for the villains. I like it.

* Bensouda's moves are based on the very reasonable assumption that a change in the (type of) government would yield new fruit. The villains and their associates must know that, and what they will do about it should be a concern to all.

* I believe that some of Bensouda's witnesses especially those who still remain in Kenya, or some people she believes would be witnesses, are people high in the government or are close to such people. This brings us back to the preceding point.

* The public seems to have this notion that at some point they will know who all the witnesses are, either before or during the trial. That is not necessarily the case. Consider the Lubanga case: the trial is over and the man has been sentenced, but we (public) still don't know who some of the witnesses were---when they testified face and voice distortion were extensively used.

Otishotish

Whilst you want to give Bensouda a lot of credit as to being smart etc....have you considered the overall import of this new charge she wants to take back to the PTC?

Have you considered that with all the 'problems' she argues she is encountering in getting her evidence it does point to sufficient trouble that she now gets "new evidence" on the murder of 6 people in Naivasha which she previuosly could not prove and now wants it brought into her case?

I think Bensouda has considerable evidence on the PEV (simply because it happened) but is struggling to make it reach the threshhold required to secure a conviction hence her wailing on how bad the Kibaki government is. She is certainly not helped by the proclamations of her predecessor that he had sufficient evidence to get people jailed 'ndivyo iwe funzo kwa wengine' as they say in Vioja Mahakamani. Incidentally did you hear the comments of Githu on this evidence issue??