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Post by kamalet on Feb 7, 2013 20:44:02 GMT 3
The ICC has been abuzz with the applications by both Uhuru and Muthaura lawyers about the abandonment off the case by OTP-4 who apparently recanted all his evidence upon which the PTC based most of its decision on to commit Uhuru to trial. Our resident ICC analyst has been too quiet despite the fact that his analysis seems to bat for the OPT rather than a fair assessment of the defence as well! So could these allegations be a game changer. www.icc-cpi.int/iccdocs/doc/doc1549410.pdf |
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Post by OtishOtish on Feb 7, 2013 22:46:01 GMT 3
The ICC has been abuzz with the applications by both Uhuru and Muthaura lawyers about the abandonment off the case by OTP-4 who apparently recanted all his evidence upon which the PTC based most of its decision on to commit Uhuru to trial. Our resident ICC analyst has been too quiet despite the fact that his analysis seems to bat for the OPT rather than a fair assessment of the defence as well! So could these allegations be a game changer. www.icc-cpi.int/iccdocs/doc/doc1549410.pdfKamalet: I am not the "resident ICC analyst"---he seems to have disappeared lately---but you might want to look again at this thread, which I tried to resurrect (without much interest on this matter): jukwaa.proboards.com/index.cgi?board=general&action=display&thread=7594This is the kind of topic on which emotions, rather than objective thoughts, are likely to rule, especially at this time. So I won't be commenting in great detail until after the elections. First, as a side-matter, Witness 4 is among the cases where the OTP has provided the court with evidence that leaks from the Defence has led to the harassment and threats to witnesses. But back to the matter at hand ... The recantation by Witness 4 has been known for months, and it has been fully expected that Uhuru and Muthaura would make something out of it; the only question was how and when. The clever timing seems to have been chosen to induce delays and ensure that Uhuru is not at the Hague during run-offs. (The court will be aware of that.) But see also (2) and (3) below. If I recall correctly, the major piece of the recantation too place in August and in October the Defence was given the transcripts from that session; other bits were given earlier. Significantly, the Defence did not get that worked up about it when the Updated DCC was being discussed. Expect that to be a major point when the action gets underway. I don't see it as a game-changer to the extent that the True Believers hope for ... at least to the extent that in my own head I have constructed a "possible-scenarios" view. For starters, although that witnesses was key, his wasn't the only testimony used to confirm the allegations. Second, if the matter goes back to the Pre-Trial Chamber, then the OTP has since got more evidence and stronger witnesses. And so on, and so forth. Obviously, it is an unfortunate piece of business, and one cannot say how the court will deal with it. One possible (and not too unlikely scenario) is that the trial will start anyway while PTC sorts out this issue. Putting on my punter's hat, let me conclude with some random predictions, whose "truth" we may find out sooner than we might think: 1. For the trial in Case 1, only 20-25% of the witnesses that were used at Confirmation will be at trial; for Case 2, it will be 45-50%. Expect the Defence to make noises about the "missing witnesses", as, indeed, Sang has already started doing. 2. If we believe that Witness 4 did not recant because of threats, etc., then he managed to be convincing because he got a lot of information from someone who was actually there. (This possibility was first raised by the Defence back in 2011.) Regradless of the viw one takes on that, what is signifiant is that the Unknown Somebody is now a witness for the OTP. 3. Two people who were either Defence witnesses at Confirmation or had volunteered to be that are now OTP witnesses, and they are likely to be very strong witnesses. 4. For quite some time, the general appearance has been that the Uhuru-Muthaura case was the much stronger of the OTP cases. That is no longer true; Case 1 is now at least as strong, and, I suspect stronger. 5. There is likely to be some more "light heat" generated by the Defence. The Defence will not directly feed stuff to the media, but they will make (sometimes questionable) applications to applications to the court which the media can then pick on. (I noted with amusement, Khan accusing the the OTP of leaking witness information! And in local court, lawyers in some integrity case declared that Case 2 had collapsed .... because the Defence said so!) 6. A great deal of the OTP's most incriminatory evidence is yet to be released. Some of the release will occur piecemeal over the next tqo months. Quick summary: Among other things, (2) and (3) are causing headaches in the Defence teams. But one thing is certain, and their lawyers know this: Uhuru and Muthaura will go on trial and with a very strong case against them. Until the trial starts, what their lawyers will be fighting for is to get a postponement until after the election run-offs. Both the OTP and the judges know that. |
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Post by kamalet on Feb 7, 2013 23:03:55 GMT 3
Otishotish
You can be it is out of respect for your diligence that I call you the resident analyst!
As regards your point 2, I have not read anywhere that OTP has new witnessss to replace the evidence given by witness #4 as Amy reading suggest that his assertions of being present at the meeting having been recanted feature very little in the new charges. Which of course suggests that the defence was perhaps clever for waiting to make the application now after seeing what evidence the OTP would be using against them in the main trial.
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Post by OtishOtish on Feb 7, 2013 23:57:59 GMT 3
Otishotish You can be it is out of respect for your diligence that I call you the resident analyst! What does one say? "That's sweet"? ;D The OTP cannot say that, especially in the Updated DCC. As indicated, mine is random punting, or if you wish, reading between the lines, reading the tea-leaves, shaking some beans in a gourd .... or even working off a couple tots of chang'aa. But, I'm willing to bet big bucks on it (99.983% certainty), and my bet will be confirmed if the issue goes back to PTC II. Everyone is being clever. When the Updated DCC was being agreed on (by OTP, Defence, Trial Chamber) everyone knew that Witness 4 had long recanted. The Defence being clever, wished to save that fight for another day, and the OTP, also being clever, gave no indication that it would not use Witness 4. On the Defence's part, that cleverness might be a negative issue in the coming skirmishes. Yes, I think Defence was being clever in the manner you suggest, but see also below ... As far as I can tell---more random punting---the Defence is trying to do two things: one, delay the start of an inevitable trial; two, force the chamber to authorize certain early disclosures and lifting of redactions. Keep in mind that although the nominal disclosure period has ended (9 Jan), many of the strongest OTP witnesses are still subject to "delayed disclosure" etc., and that's happening piecemeal---a whole bunch of stuff dumped on the criminals just last week. There are now likely to be longer delays: the VWU is working overtime to relocate (from Kenya and, I imagine, nearby countries) some witnesses and their families even as they face continuing threats. E.g. a couple of weeks or so ago, the Trial Chamber ordered the OTP to release, by end Jan information, relating to a significant witness. Before that could happen, the witness (in Kenya or ...) was identified and subject to ... the Trial Chamber has now withdrawn that order. |
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Post by kamalet on Feb 8, 2013 0:33:13 GMT 3
The wisdom of either parties will be apparent quite soon!
What has been going through my mind is how Ocampo may have bungled this case and how difficult it must be for Fatty Bensweetheart to a manage the case in its present shambles. so I can only wait to see what her response will be to these filings once she is ordered to do so by the chamber.
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Post by tactician on Feb 8, 2013 0:36:47 GMT 3
i've read through both applications by uhuru & muthaura in conjunction with the confirmation decision.
The confirmation decision established the common plan based upon the three meetings held in nov - jan. Witness 4 was the sole eye witness to these meetings.
But he was not the only witness. The confirmation decision shows other witnesses (11 & 12) who corroborate witness 4.
Nevertheless, w4 is the primary source while 11 & 12 back up.
In the absence of w4, then the confirmation decision must establish another primary source of evidence AND look for supporting/corroborating witnesses.
Also, Muthaura's lawyer makes a better case than Uhuru's regarding the OTP's aleged misconduct - deceiving the PTC that they OTP believed the witness AND refusing to disclose to defence exculpatory evidence that w4 had recanted.
In summary, Khan (Muthaura's lawyer) alledges that OTP had the recantation statement by w4 a year BEFORE the confirmation hearing. He continues and alleges that OTP did NOT disclose this to PTC. Further, OTP only disclosed this to defence a year AFTER confirmation!
But let's not lose our heads.
All these are allegations by defence. Let's wait for OTP to reply and we shall have a more balanced view of this.
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Post by OtishOtish on Feb 8, 2013 0:57:24 GMT 3
Yes, there will be all sorts of interpretations ... The Defence are definitely working hard, and so they should for at least 1 million pounds per year (not counting numerous "extras" and "expenses".) i've read through both applications by uhuru & muthaura in conjunction with the confirmation decision. But he was not the only witness. The confirmation decision shows other witnesses (11 & 12) who corroborate witness 4. Nevertheless, w4 is the primary source while 11 & 12 back up. ... In the absence of w4, then the confirmation decision must establish another primary source of evidence AND look for supporting/corroborating witnesses In the focus on corroboration supposedly having to come from the OTP witnesses, there are some interesting bits that the Defence (and you) have skipped. Careful attention should be paid to these. E.g. this person, who was a Defence witness at Confirmation. Confirmation Decision: Another Defence witness, *** (D12-37), confirms his participation in the meeting at State House as a representative, together with Maina Diambo and of "Operation Kibaki Again". This witness also confirms that the same people mentioned by Witness OTP-4 attended the meeting at State House as well as the fact that Maina Kangethe Diambo was a member of the Mungiki at the relevant time, as referred to by Witnesses OTP-4, OTP-11 and OTP-12. Furthermore, the witness states that at the end of the meeting they received an envelope containing money.Expect to hear much more about D12-37 in the upcoming skirmishes. The OTP asked for certain redactions, and the judge approved them. Once redactions have been so approved, the OTP is actually not free to act on its own in lifting them. Still, nice spin from the Defence. That is not quite so. But it's a nice spin, just the sort of thing to put the media into a feeding frenzy. Indeed. |
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Post by Deleted on Feb 8, 2013 1:23:09 GMT 3
The wisdom of either parties will be apparent quite soon! What has been going through my mind is how Ocampo may have bungled this case and how difficult it must be for Fatty Bensweetheart to a manage the case in its present shambles. so I can only wait to see what her response will be to these filings once she is ordered to do so by the chamber. OK skinny kamalet! you don't like 'em chunky?  |
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Post by OtishOtish on Feb 8, 2013 1:49:11 GMT 3
OK skinny kamalet! you don't like 'em chuncky? I believe Kamale is an aunthentic African man. Speaking of such things, I note that during the trials, the felons are not permitted to go beyond 30km of the Hague, and two have already asked that the distance be extended to 60 km. Coincidentally, the distance from the court to Amsterdam's red-light district is 55km. Not that I'm implying anything. |
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Post by furaha on Feb 8, 2013 1:57:49 GMT 3
OK skinny kamalet! you don't like 'em chuncky? I believe Kamale is an aunthentic African man. Speaking of such things, I note that during the trials, the felons are not permitted to go beyond 30km of the Hague, and two have already asked that the distance be extended to 60 km. Coincidentally, the distance from the court to Amsterdam's red-light district is 55km. Not that I'm implying anything.  . Point taken. But could there be another or an additional reason? Isn't the airport more than 30 kms away from The Hague? Might be nice to sneak out after successive long sessions? |
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Post by b6k on Feb 8, 2013 2:09:16 GMT 3
Otishotish, there happens to be a red light district in The Hague as well so Furaha is more likely to be right about the airport. Incidentally, referring to the dynamic duo as "felons" especially in the few days leading up to the general election is not a good idea. Don't forget a felon is one who has been convicted of the charges. The dynamic duo remain suspects until the trial determines their fate. I wouldn't want to see a fellow Jukwaaist being hauled off into our new Milimani courts for defamation ;D ;D ;D
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Post by OtishOtish on Feb 8, 2013 2:10:31 GMT 3
Isn't the airport more than 30 kms away from The Hague? Might be nice to sneak out after successive long sessions? The 30-km restriction is for the entire duration of the trial, as long as they are in the Netherlands and regardless of whether or not the court is in session. I think it's very sensible: if I were living in The Netherlands, I wouldn't be too happy with the idea of mass rapists and mass murderers roaming freely around the country. |
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Post by OtishOtish on Feb 8, 2013 2:18:48 GMT 3
Otishotish, there happens to be a red light district in The Hague as well so Furaha is more likely to be right about the airport. Yes, but have you ever heard of anybody dying to go to the Hague for weed and [redacted]? Here, for example is what Wikitravel has to say; "The Hague has very little of the edginess and excitement of Amsterdam; however, it provides well for its inhabitants in different ways, such as large areas of green space, 11 km of coastline, attractive shopping streets ..."No mention of the red-light distict. Green space, huh? On the other hand, the entry for Amsterdam is quite informative on relevant point. |
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Post by mank on Feb 8, 2013 4:17:14 GMT 3
The ICC has been abuzz with the applications by both Uhuru and Muthaura lawyers about the abandonment off the case by OTP-4 who apparently recanted all his evidence upon which the PTC based most of its decision on to commit Uhuru to trial.
Our resident ICC analyst has been too quiet despite the fact that his analysis seems to bat for the OPT rather than a fair assessment of the defence as well!
So could these allegations be a game changer.
www.icc-cpi.int/iccdocs/doc/doc1549410.pdf
So they dropped that "witness" and his meeting? What an anti-climax! After reading this doc, coupling with my own observations which I voiced on this board about an obvious fundamental lie of Witness 4, I can bet Muthaura is the next to join us in the audience side. I am curious though: Is the Defense privy to the "Redacted" material, or is it in the dark as the rest of us are? |
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Post by OtishOtish on Feb 8, 2013 5:17:20 GMT 3
So they dropped that "witness" and his meeting? What an anti-climax! Not to worry. There are still plenty of meetings. Here is what the Updated DCC says: "The key preparatory meetings include those held in Nairobi on or about 30 December 2007 (at the State House), on or about 3 January 2008 (at the Nairobi Club) and in early, mid and late January 2008."Reading the latest Defence submissions, it's amusing to see how they squirm around all this. Revisiting history, I recall that just before the Confirmation Hearings, the Defence teams went on and on wailing about how the OTP had changed its case, the matter needed to be adjourned so that they could have more time to prepare, di da di da .... I suspect that, as then, some very hot, unexpected stuff has just been dumped on them. It probably hasn't helped that at least two of their former witnesses/would-be-witnesses have lately been singing to the OTP. Anyway, enough of this. Let's wait for the games to begin. |
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Post by mank on Feb 8, 2013 5:39:43 GMT 3
So they dropped that "witness" and his meeting? What an anti-climax!
Not to worry. There are still plenty of meetings. ... That's reassuring. I was starting to worry about all the popcorn I have stocked in anticipation. Still I think one side is full hot air - just not confident that I know which it is. Ooh, the suspense! |
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Post by b6k on Feb 8, 2013 6:52:05 GMT 3
Otishotish, there happens to be a red light district in The Hague as well so Furaha is more likely to be right about the airport. Yes, but have you ever heard of anybody dying to go to the Hague for weed and [redacted]? Here, for example is what Wikitravel has to say; "The Hague has very little of the edginess and excitement of Amsterdam; however, it provides well for its inhabitants in different ways, such as large areas of green space, 11 km of coastline, attractive shopping streets ..."No mention of the red-light distict. Green space, huh? On the other hand, the entry for Amsterdam is quite informative on relevant point. Otishotish, as a former resident of Den Haag (& I should add not as a convicted felon) I can assure you that The Hague is no Sleepy Hollow. It does have it's fair share of "coffee" shops that have more than the ordinary coffee bean on their menu along with a very legal & active Red Light District ;D But I digress. Ruto's defence team has also joined the fray asked for a deferment of the case as now the charges against him have also been broadened. He has also requested the 30km movement restriction be extended to at least 60kms.  www.standardmedia.co.ke/?articleID=2000076828&story_title=Kenya--Ruto-wants-ICC-trial-deferred-for-him-to-build-strong-defenceThat said, considering Bensouda earlier this year said she requires 2 years to submit evidence against the dynamic duo, I fail to see how the digital team can effectively rule KE from the 30km radius they will be free to roam about in the Hague during the course of the said 2 yeaars. Unless, ofcourse, The Hague will magically be transformed into the the 48th County of KE..... |
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Post by OtishOtish on Feb 8, 2013 7:06:54 GMT 3
Otishotish, as a former resident of Den Haag (& I should add not as a convicted felon) I can assure you that The Hague is no Sleepy Hollow. It does have it's fair share of "coffee" shops that have more than the ordinary coffee bean on their menu along with a very legal & active Red Light District ;D I'll take your word on that one. As an Upright Pillar of The Community, I have no knowledge of such things, beyond what I read in Wikitravel. I imagine that your news will come as a relief to the suspects as they seek to come as a relief. I recall Ruto at one point saying that he would use his computer or something. |
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Post by OtishOtish on Feb 8, 2013 7:30:41 GMT 3
Still I think one side is full hot air - just not confident that I know which it is. Ooh, the suspense! When you have some time to kill, go through the Updated DCC, whih takes into account the judges instructions after reviewing submissions from both sides. Using the Confirmaton Decision as reference, ask yourself if there is anything there that really depends on Witness 4: www.icc-cpi.int/iccdocs/doc/doc1537646.pdfOops! Looks like Bensouda left out one or two things. Will the Defence now fight to have things included? That should be interesting. After all, it is her choice on to what to include from the Confirmation Decision. What would be the logical thing to do when a witness has recanted? Keep going with what he said? This will be good. Order more popcorn. |
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Post by tactician on Feb 8, 2013 11:38:04 GMT 3
Otish,
Thanks for the comments that you have made.
I will just address myself to one question that has been raised by both Uhuru & Muthaura defence:
The confirmation decision relies a lot on w4 to confirm the common plan meetings held in Nov - Jan.
Of course, as you point out, there were other witnesses who corroborated this - but theirs was to confirm, not to assert..and the confirmation decision is quite clear on this.
The defence alledges that that OTP knew that w4 had recanted his testimony BEFORE the confirmation hearing - yet presented the recanted testimony as if it were true.
And the PTC used that testimony.
The situation is now as follows:
- the case is now at trial BECAUSE the PTC decided to affirm the charges.
- yet the supporting testimony of the PTC decision is now known to be false.
The question then becomes:
- Is the confirmation decision VALID?
It does not matter that there is now new info on the same charges. This new info was NOT evaluated by the PTC hence it has no bearing on the confirmation decision that was delivered.
Of course, let us wait for OTP to present their case....
But going by the defence allegations, the PTC will feel embarrassed by this
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Post by Onyango Oloo on Feb 8, 2013 15:26:16 GMT 3
Let me disclose that I know a little bit more about this W4 than I am willing to disclose on Jukwaa.
And with that, I firmly zip my lips once again.
Onyango Oloo
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Post by mank on Feb 8, 2013 16:48:23 GMT 3
Still I think one side is full hot air - just not confident that I know which it is. Ooh, the suspense!
www.icc-cpi.int/iccdocs/doc/doc1537646.pdf
Oops! Looks like Bensouda left out one or two things. Will the Defence now fight to have things included? That should be interesting. After all, it is her choice on to what to include from the Confirmation Decision. What would be the logical thing to do when a witness has recanted? Keep going with what he said?
This will be good. Order more popcorn.Most appreciated. I would have continued into the DCC immediately I read the submission by the defence, but I could not tell what the heck of a document DCC referred to. |
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Post by OtishOtish on Feb 8, 2013 16:50:12 GMT 3
The confirmation decision relies a lot on w4 to confirm the common plan meetings held in Nov - Jan. Of course, as you point out, there were other witnesses who corroborated this - but theirs was to confirm, not to assert..and the confirmation decision is quite clear on this. The entire Confirmation Decision did not depend on Witness 4, although it is clever of the Defence to try and portray it that way (especially for public fireworks). At this stage corroboration of anything Witness 4 said is actually not critical, except in so far as it is useful in understanding the Confirmation Decision. As I've suggested above, what you should do is read the Updated DCC and ask yourself what there really depends on Witness 4. (And keep in mind that the UDCC was the result of significant input from the Defence and Judges and that all parties involved already knew that Witness 4 had recanted.) That is not entirely accurate---the way the Defence has tried to portray things, as well as your interpretation of what the Defence strictly alleges. As far as I can tell, the critical recantation took place in summer 2012. See my comment above on the UDCC. Consider the following scenario. It has alleged that on 19 June, Pablo and his friends robbed the state bank on Mexicali St. It is also alleged that to plan the robbery, they held meetings on 8 June, 12 June, and 14 June. They are charged and indicted. Later the prosecutor has problems with the witness who testified about the alleged meeting on 8 June; so the prosecutor withdraws all claims on that meeting and drops the witness. Can the charges still stand based on the facts that the bank was indeed robbed and there were planning meetings on 12 June and 14 June? Moving beyond that, and considering allegations (as opposed to charges), in the discussions to update the DCC, the Trial Chamber made a related and significant ruling: The OTP cannot include allegations that were rejected by PTC but can include allegations that were not addressed by the PTC. So the UDCC does include numerous "new info" (allegations) that were NOT "evlauated" by the PTC. |
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Post by mank on Feb 8, 2013 16:54:03 GMT 3
Let me disclose that I know a little bit more about this W4 than I am willing to disclose on Jukwaa.
And with that, I firmly zip my lips once again.
Onyango Oloo
You won't admit since you do not want to disclose anything, but that knowledge would include that W4 is a lousy liar. |
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Post by mank on Feb 8, 2013 17:18:02 GMT 3
Otishotish,
I observe that the DCC you are pointing to as having nothing to do with W4 is an updated document containing charges, the same one the Defence is saying is document of charges quite dissimilar to the charges that were heard. You seem to be disputing the Defence's claim that the commitment to trial was based primarily on the evidence of W4. However you are not giving any details regarding other evidence that was material to committing the case to trial.
What Defence is arguing, and which seems incontestable, is that the current DCC presents a remarkably different case vis-a-viz the case that was heard and committed to trial. Defence argues, therefore, that the charges in the current DCC would need to go through their own hearing, or a direct to trial move would amount to circumvention of due process in that the actual charges that would be tried have not really been committed to trial.
If you would, now connect the dots between the juicy hearings where W4 was key (I am not saying that just because Defence say so; we followed the hearings very closely on this board, but I could error since I may not be sharp on the details), and the updated DCC. If a connection does not exist that excludes W4, then in my view the Defence is right, and the court will also be persuaded so.
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. Point taken. But could there be another or an additional reason? Isn't the airport more than 30 kms away from The Hague? Might be nice to sneak out after successive long sessions? 
