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Post by OtishOtish on Feb 8, 2013 17:43:52 GMT 3
At some point debate on this will go nowhere, so we might as well just wait to see what happens. But I will make a few quick comments. 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. First, there has been no change in the charges although the OTP has added numerous new allegations. Second, refer to the discussions leading to the Updated DCC: the Defence made all the comments it had, the OTP responded, and the judge accordingly ordered the OTP to make some changes. Third, what the OTP has done is leave out some things that it made a big deal of during Confirmation; that is well within the Prosecutor's powers, however unhappy and surprised the Defence might be. "Seems" is the key word there. See also above comments on the process leading to the new DCC. Once again, please note that the new DCC does not contain any new or alterred charges. What you are asking is not quite clear to be. E.g. what do you mean by "connecting dots" and "excludes W4". Perhaps you can clarify. I am not in a position to comment on what the court will be persuaded on, but see my "Pablo" scenario above.
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Post by tactician on Feb 8, 2013 18:05:02 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.otish, Mank has explained is exacty what I am trying to put through. You refer to the DCC but the defence asserts that the case in the DCC is materially different from that in the confirmation hearing. Just to give context, the PTC then TC process is supposed to go as follows: - OTP does investigation as much as is possible. - OTP presents case to PTC. Here the OTP may present just a sample of the evidence so far collected so as to get charges confirmed. Of care here, is that the OTP's evidence must support the charges he intends to prosecute at TC phase. So if OTP intends to try theft, burglary, murder at Trial phase, then OTP must present this evidence. Any charges not sought here cannot proceed to TC phase - PTC confirms case - TC takes over case - OTP presents all the evidence that he had done (prior to confirmation). In this last stage, OTP presents all evidence supporting the charges confirmed at PTC (theft, burglary, murder). if OTP wants to add new charges (corruption), it must go back to PTC and confirm them. This is what has happened to the guns charge that OTP wanted to add in DCC. Now, here is the dilemna in this case, as presented by defense: OTP went to PTC, with evidence of theft, burglary & murder. The case was confirmed and we are now at trial/TC phase. The issues are: - one, the evidence used in confirmation at PTC, was allegedly false. If this is true, then the process of getting to the PTC was short circuited and should be re-started. -two, most of OTP's evidence was collected AFTER confirmation - whereas ICC requires OTP to collect all/substantial majority of evidence BEFORE confirmation. In light of this, then the defence is hamstrung since the case presented at TC is materially different from what was at PTC.
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Post by tactician on Feb 8, 2013 18:33:01 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. quick one - give me the link to the TC decision that says that OTP can include allegations that were not addressed by PTC. I mihgt be missing something here.
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Post by OtishOtish on Feb 8, 2013 18:34:59 GMT 3
I'll make a few quick comments. if OTP wants to add new charges (corruption), it must go back to PTC and confirm them. This is what has happened to the guns charge that OTP wanted to add in DCC. One more time: There are no new charges, nor has the OTP tried to add any new charges. The guns issue was a factual allegation that was rejected by the PTC. Again: the Trial Chamber has ruled that allegations that were rejected by the PTC cannot be included (without going back to the PTC) but allegations that were not considered by the PTC can be included. The Appeals Chamber has ruled that it is desirable that investigations be mostly completed before Confirmation but that is not a requirement. See also 8. The Appeals Chamber judgments in Lubanga and Mbarushimana imposed no restrictions or special conditions on the post-confirmation hearing exercise of the Prosecutor’s ability and obligation to investigate fully the case in accordance with its obligations under Article 54(1). In Lubanga, the Appeals Chamber established that the duty to establish the truth is not limited to the time before confirmation hearing.8 While the Appeals Chamber did state that, “ideally”, it would be “desirable” that investigations are completed by the time of the confirmation hearing, in that decision it reversed Pre-Trial Chamber I’s finding that the Prosecution could conduct its investigations post-confirmation hearing only in exceptional circumstances that needed to be justified. The Appeals Chamber found that the “Prosecutor does not need to seek permission from the Pre- Trial Chamber to continue his investigation”. The Appeals Chamber went on to say that “under certain circumstances to rule out further investigation after the confirmation hearing may deprive the Court of significant and relevant evidence, including potentially exonerating evidence”from: www.icc-cpi.int/iccdocs/doc/doc1549554.pdfThe court issued a lengthy decision on how the DCC was to be updated. (I'll find the link later, but from my downloaded copy.) There are parts of that decision that should be kept in mind when looking again at the Confirmation Decision and what was presented at the Confirmation Hearings. 22. Therefore, in the Chamber's view, the Confirmation Decision cannot be expected to serve as the only authoritative statement of the charges for the trial. The Chamber is of the view that the description of the charges in the DCC, amended to harmonise it with the findings made in the Confirmation Decision, provides a sufficiently authoritative statement of the charges relevant to the trial proceedings.
23. As indicated above, when determining whether there is sufficient evidence to establish substantial grounds to believe that the crimes charged were committed, the Pre-Trial Chamber may not have examined in detail, in its Confirmation Decision, each factual allegation contained in the DCC and it may have chosen to focus on only some selected allegations and evidence sufficient for the task before it. However, this does not mean that the Pre-Trial Chamber did not confirm the the charges themselves, as well as the facts and circumstances described in those charges and their legal characterisation, unless it explicitly declined to do so.
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Post by tactician on Feb 8, 2013 18:40:47 GMT 3
otish,
the paras you have quoted are from OTP side which will of course favour them.
Here is a recent decision on evidence collection from the appeals chamber in
44. The Appeals Chamber is not persuaded by the Prosecutor's argument that the Pre-Trial Chamber cannot properly evaluate the evidence because it lacks the full evidence. ^^ As previously indicated by the Appeals Chamber, the investigation should largely be completed at the stage of the confirmation of charges hearing.^^ Most of the evidence should therefore be available, and it is up to the Prosecutor to submit this evidence to the Pre-Trial Chamber.^^ Where the Prosecutor requires more time to complete the investigation, mle 121 (7) of the Rules of Procedure and Evidence permits him to seek a postponement of the confirmation of charges hearing. If the evidence is found to be insufficient, article 61 (8) of the Statute provides that the Prosecutor is not precluded from subsequently requesting the confirmation of charges on the basis of additional evidence.
Source: IN THE CASE OF THE PROSECUTOR v. CALLIXTE MBARUSHIMANA, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 16 December 2011.
Let's keep talking
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Post by mank on Feb 8, 2013 18:45:26 GMT 3
What you are asking is not quite clear to be. E.g. what do you mean by "connecting dots" and "excludes W4". Perhaps you can clarify. ... I will be glad to clarify, as this is the juncture at which our communication is breaking. What I meant to ask you above is, please illustrate with something specifics, from proceedings at PTC, that confirmation was based on evidence not primarily connected to W4. You have alluded to such facts in general terms but here I am asking for specifics. Personally, once it became clear that at least one thing the witness claimed could not be true (my personal judgement based on my knowldge of the backgrounds of the suspect central to the allegation), and because that one thing seemed so powerful in moving those who would not have the vantagepoint I had, then I perused the document to see what other witness had strong evidence - there was nothing significant. I agree with you that at some point our debate will not amount to anything on the matter - but none of us should be disillusioned to think that our debate was ever going to amount to anything. We are just involving ourselves in the process at the level we can, and for me its a pleasure to debate as long as we are honest analysts. I don't mind if any one has an opinion about guilt/innocence of the accused - I just take pleasure in following the evidence.
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Post by OtishOtish on Feb 8, 2013 19:00:18 GMT 3
otish, the paras you have quoted are from OTP side which will of course favour them. I think you want to argue, rather than reach a point of understanding. I have quoted 3 paragraphs. Two (22 and 23) are from a decision by Trial Chamber V, and my quotations were preceded by "The court issued a lengthy decision on how the DCC was to be updated" . Here they are again: 22. Therefore, in the Chamber's view, the Confirmation Decision cannot be expected to serve as the only authoritative statement of the charges for the trial. The Chamber is of the view that the description of the charges in the DCC, amended to harmonise it with the findings made in the Confirmation Decision, provides a sufficiently authoritative statement of the charges relevant to the trial proceedings.
23. As indicated above, when determining whether there is sufficient evidence to establish substantial grounds to believe that the crimes charged were committed, the Pre-Trial Chamber may not have examined in detail, in its Confirmation Decision, each factual allegation contained in the DCC and it may have chosen to focus on only some selected allegations and evidence sufficient for the task before it. However, this does not mean that the Pre-Trial Chamber did not confirm the the charges themselves, as well as the facts and circumstances described in those charges and their legal characterisation, unless it explicitly declined to do so. (8) is from a submission by the OTP. It refers to a decision in the Lubanga case. Having read that decision, I do not see where it contradicts the OTP's submission. Nor do I see where what you reproduce below contradicts the OTP submission.
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Post by OtishOtish on Feb 8, 2013 19:00:36 GMT 3
quick one - give me the link to the TC decision that says that OTP can include allegations that were not addressed by PTC. I mihgt be missing something here. I'll find the link later, but here are relevant bits from my downloaded copy: (1) Facts on which the Confirmation Decision is silent
16. The defence objects to the retaining of a number of factual allegations in the DCC, arguing that the Pre-Trial Chamber did not address them in the Confirmation Decision. The prosecution disagrees and contends that the fact that the Pre-Trial Chamber did not confirm a factual allegation is not determinative of whether it can be included in the Updated DCC. ... 22. .... The Chamber thus, in principle, authorises the prosecution to retain such factual allegations in the Updated DCC. On other issues: 25. The Chamber agrees with the prosecution that at this stage of the proceedings the alleged lack of evidence is not determinative of whether this factual allegation may be retained in the DCC. The Pre-Trial Chamber made no finding to the effect that it does not confirm this particular allegation as part of the charges. There is thus no merit to the defence's objection and it remains open to the prosecution to prove this allegation with sufficient evidence at trial. ... 28. The Chamber reiterates its conclusion that the fact that an allegation was not expressly confirmed by the Pre-Trial Chamber does not mean that it needs to be removed from the Updated DCC. ... 43 ....In response, the prosecution agrees to indicate the dates of the meetings addressed in the Confirmation Decision. However, it objects to the exclusion of any other preparatory meetings, arguing that the relevant factual allegations were not expressly rejected by the Pre-Trial Chamber and that they do not modify or exceed the scope of the confirmed charges.
44. ...The Chamber recalls its conclusion regarding the Pre-Trial Chamber's silence on specific allegations and considers this conclusion to be applicable to the present issue .... Therefore, the Chamber finds that the relevant parts of the Updated DCC should not be limited in the manner proposed by the defence.This could go on forever; so this will probably be my last on this. I will, however, shortly locate and post the link to the UDCC decision
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Post by OtishOtish on Feb 8, 2013 20:00:30 GMT 3
I will be glad to clarify, as this is the juncture at which our communication is breaking. What I meant to ask you above is, please illustrate with something specifics, from proceedings at PTC, that confirmation was based on evidence not primarily connected to W4. You have alluded to such facts in general terms but here I am asking for specifics. Personally, once it became clear that at least one thing the witness claimed could not be true (my personal judgement based on my knowldge of the backgrounds of the suspect central to the allegation), and because that one thing seemed so powerful in moving those who would not have the vantagepoint I had, then I perused the document to see what other witness had strong evidence - there was nothing significant. I agree with you that at some point our debate will not amount to anything on the matter - but none of us should be disillusioned to think that our debate was ever going to amount to anything. We are just involving ourselves in the process at the level we can, and for me its a pleasure to debate as long as we are honest analysts. I don't mind if any one has an opinion about guilt/innocence of the accused - I just take pleasure in following the evidence. I finally get what you are asking, but at this point I am a bit tired of this. I may get to it later. The matter is certainly very akward and problematic in some ways, and I am inclined to believe that it will lead to a delay (either in starting date for trial or after trial has nominally started). It will be interesting to see what happens, given that all knew there would be some excitement over this issue. Nevertheless, I put 11 beans in my gourd this morning, chanted, and threw them onto my leopard skin. The 8 that fell on the left told me that Uhuru and Muthaura are going to trial and with the OTP having a much stronger case that before and to an extent that will surpise us; the 3 that fell to the right indicate a 99.982% accuracy on this prediction. (The empty gourd told me that Ruto and Sang are in far hotter soup than we might have expected going into the trial: new witnesses have been singing like nobody's business.) Point taken on the last. On serious matters, I engage in debate in the hope that all debators will end up with a bit more clarity. I don't care much for a debate that for some, like that buddy of yours, is little more than an intellectual handjob. (In whatever form it takes, an excess of that sort of thing is always bad for one's health.) For fun, let's debate why Sang and Ruto want to be within striking distance of (supposedly) some of the best weed and [redacted] in Europe. Later.
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Post by OtishOtish on Feb 8, 2013 21:00:48 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
It is a very interesting and complex situation. It might not be the case that he suddenly woke up one day and decided to recant. There is still an ongoing investigation into what happened after the Defence learned (around the time of Confirmation Hearings) of his identity, and the judges are already privy to a great deal that we don't know, and "we" here includes the Defence. There might also be some interesting happenings before that time. Of course, it could be that the fellow told one or two fibs, but ... interesting and complex case.
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Post by mank on Feb 8, 2013 22:37:20 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
It is a very interesting and complex situation. It might not be the case that he suddenly woke up one day and decided to recant. There is still an ongoing investigation into what happened after the Defence learned (around the time of Confirmation Hearings) of his identity, and the judges are already privy to a great deal that we don't know, and "we" here includes the Defence. There might also be some interesting happenings before that time. Of course, it could be that the fellow told one or two fibs, but ... interesting and complex case.If we could unearth the thread under which we discussed the proceedings in PTC in real time you would see the kind of stinker W4 flared with his "evidence" even before the Defence expressed the sting that the evidence caused it's nostrils. With that you would start thinking that any surprises here cannot be good for the OTP. The guy was lying through his nostrils, unaware that what he did not know about the people he was lying about could be his own liar liar alarm whistle. He certainly did not get up one day and decide to recant ... it probably took him some time to realize that it would catch up with him.
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Post by kamalet on Feb 8, 2013 22:58:36 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. Otishotish I do not think your Pablo and his friends exactly fits the situation that W4 is in. If you read the confirmation excerpts you will note that W11 and W12 only corroborated what W4 had alleged rather that provide any new information. Whilst the confirmation ruling was clear that the PTC trusted what W4 said regarding the meetings of 26th, 30th December and 3rd January, with the withdrawal of the witness, OTP now generalises the dates as well as the events. This is what appears to peeve the defence. Now if the matter was referred to the PTC for review and considering the dissenting judgement of Kaul, is it possible they can still uphold the charges?
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Post by OtishOtish on Feb 9, 2013 0:12:22 GMT 3
Ndugu Kamale: Since this thread started with a query from you, I will, even though, tired, give a brief response. Otishotish I do not think your Pablo and his friends exactly fits the situation that W4 is in. If you read the confirmation excerpts you will note that W11 and W12 only corroborated what W4 had alleged rather that provide any new information. I see your point, but it is possible in such a case for one to see whatever one wishes to see. It requires a (relatively) lengthy answer, and I've already written plenty on this thread. I might take it up later. But see my last point below. Not quite. The 26th date is gone. But the 30th Dec and 3 Jan dates are still in. Beyond that the OTP has added allegations about other meetings that were not considered during Confirmation. (The Trial Chamber agreed that they could do that.) In this world anything is possible. The only comment I can add is that I have stated above what my gourd, 11 beans, and ancient leopard-skin tell me. If I were on the Defence team, the last thing I would want is a major (re)-hearing before the PTC. Keep in mind that (a) the Defence has been fighting to constrain the OTP to the Confirmation Decision and (b) the OTP has very much improved its case since then. Something for a short delay? Why not. Something that might get all sorts or new stuff confirmed? Risky. But at 1M+ pounds per year on a single case, and a desperate client, who knows? We'll have to wait and see. When you have some time to kill, try doing this: Take a look at the Trial Chamber's lengthy decision on the Updated DCC. ( Mank: this is the link you were after.) www.icc-cpi.int/iccdocs/doc/doc1532400.pdfThen take a look at the Updated DCC, and ask yourself this: has the UDCC in any way contravened the TC's decision? Can the defence argue that it has? It was on such a point, among others, that Pablo and his friends failed to get satisfaction. (As for the excitement over the OTP's pre-trial brief, see earlier remarks.) Must run. It's the weekend, and I have to catch something small with compatriots, in order to find out how all the latest polls show that everyone will win.
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Post by mank on Feb 9, 2013 0:21:46 GMT 3
Ndugu Kamale:
Since this thread started with a query from you, I will, even though, tired, give a brief response.
Otishotish I do not think your Pablo and his friends exactly fits the situation that W4 is in. If you read the confirmation excerpts you will note that W11 and W12 only corroborated what W4 had alleged rather that provide any new information.
I see your point, but it is possible in such a case for one to see whatever one wishes to see. It requires a (relatively) lengthy answer, and I've already written plenty on this thread. I might take it up later. But see my last point below.
Not quite. The 26th date is gone. But the 30th Dec and 3 Jan dates are still in. Beyond that the OTP has added allegations about other meetings that were not considered during Confirmation. (The Trial Chamber agreed that they could do that.)
In this world anything is possible. The only comment I can add is that I have stated above what my gourd, 11 beans, and ancient leopard-skin tell me. If I were on the Defence team, the last thing I would want is a major (re)-hearing before the PTC. Keep in mind that (a) the Defence has been fighting to constrain the OTP to the Confirmation Decision and (b) the OTP has very much improved its case since then. Something for a short delay? Why not. Something that might get all sorts or new stuff confirmed? Risky. But at 1M+ pounds per year on a single case, and a desperate client, who knows?
We'll have to wait and see.
When you have some time to kill, try doing this: Take a look at the Trial Chamber's lengthy decision on the Updated DCC. (Mank: this is the link you were after.)
www.icc-cpi.int/iccdocs/doc/doc1532400.pdf
Then take a look at the Updated DCC, and ask yourself this: has the UDCC in any way contravened the TC's decision? Can the defence argue that it has? It was on such a point, among others, that Pablo and his friends failed to get satisfaction. (As for the excitement over the OTP's pre-trial brief, see earlier remarks.)
Must run. It's the weekend, and I have to catch something small with compatriots, in order to find out how all the latest polls show that everyone will win. You add value to every penny I put into my popcorn buddy. Have a good and safe weekend, and above all, keep up the effort! If we all see this thing the same way, all that popcorn will be of no use and will go stale in the absence of suspenseful excitement.
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Post by jakaswanga on Feb 9, 2013 21:17:02 GMT 3
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. Otishotish, When a witness recants: Is the withdrawal of the earlier signed statement, his rejection of it, also understood as saying he was lying, told and wrote untruths in total? And that the whole statement has no bearing on a truthful rendition of events to the best of his knowledge? I am asking this, because in one of your comments as in red above -- by the way hats-off you are excellently deep into this thing and Kamalet is right to proclaim you RAIC [Resident analyst in Chief], you allude to the fact of OTHER INDEPENDENT CORROBORATION of the statements earlier made by this witness, but now null and void. That is, he has recanted, but the events/statements have not lost their credibility as truths, because he did not have MONOPOLY of witnessing! and further, not all who witnessed and can corroborate, have recanted ;D. --they could later! 1. If he was not a single source, why any big deal made about his recantation? 2. Is there anything against court procedures, that prevents the OTP from informing the Presiding Judge in advance, that the recantation of this witness has no material bearing on the facts. These remain the same, corroborated multisource unrecanted. Yet? 3. Personally, in whatever capacity, if one recants a truth I can otherwise prove, I can be pretty nasty. How much nastiness do you, just for academic purposes, imagine the roundish Bensouda can bring to bear on this poor Kenyan soul?
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Post by jakaswanga on Feb 9, 2013 21:23:06 GMT 3
[ post=115897 time=1360279128] 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 If I remember my geography correct from Belgium, b6k, should Rotterdam not be within 30km of the Hague? Is there an airport there? But I know it has a large-container port with busy ships in and out, and Uhuruto could easily slip away as sto-aways! ;D Don't tell me you are an ISS alumni! ;D ;D ;D
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Post by Daktari wa makazi on Feb 9, 2013 23:43:14 GMT 3
[ post=115897 time=1360279128] 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 If I remember my geography correct from Belgium, b6k, should Rotterdam not be within 30km of the Hague? Is there an airport there? But I know it has a large-container port with busy ships in and out, and Uhuruto could easily slip away as sto-aways! ;D Don't tell me you are an ISS alumni! ;D ;D ;D The Hague is actually nearer the North Sea. Rotterdam is on a river - but it does have a container facility and is well-known for its port which I think is built I presume on river delta, can't remember the name of the river.
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Post by Daktari wa makazi on Feb 10, 2013 0:20:21 GMT 3
The credibility of witnesses will be a serious issue to be decided. I bet the cases of the 4 will depend on how much credibility will the testimony of the witnesses hold after the defense finish with them, i.e cross-examination. The Congolese fellow - Chui- was acquitted because it was proved that the prosecutorial witnesses were compromised. Of interest, is how the pieces are peeled away, one by one. Who would have thought that the KNHC would be refused permission to act as a friend of the Court, amicus curiae. It seems their role is now finished. www.icc-cpi.int/iccdocs/doc/doc1547648.pdfThe dropping of the witness does imply the evidence given by that witness is not credible. That is because if the new evidence introduced correlated with what the dropped witness testimony was, then not only would both witnesses be used to cement the integrity of the testimony they proffered but must both be used to equally strengthen the charges with more facts from the two sources. However, from what I have read, the charges where solely confirmed are not based on a single witness or testimony, hence it will be difficult to see how the Court could review all testimonies even if one is established to be wanting. They probably would leave the Trial Court to make its mind on the testimony and acquit if the threshold of proof is not surmounted. The suspense and the long wait are finally over, the Court will determine all the pending issues on the status conference, and hopefully will shall know how they intend to proceed on the 14 Feb, interestingly the Valentine day at 2.30pm. I suspect the suspects will appear via video-link. After that day, a clear picture will appear on how the trial will be conducted, including the summons. www.icc-cpi.int/iccdocs/doc/doc1548414.pdfThere seems to be some confusion. The Prosecutor is allowed to adduce new facts or factual scenarios or factual circumstances ( from new found witnesses) to vouch for the charges they brought, not introduce new allegations. The allegations must correspond to the charges filed. If one allege another killed someone, the charges to be brought is murder. But, where new facts are introduced to support the allegation and charge, for instance when a witness who was not known turns up. Then, the allegation remains killing and the charge is murder which go hand in hand with the new supporting facts.
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Post by kamalet on Feb 10, 2013 11:37:31 GMT 3
Something remains unanswered I am afraid and this despite Mank trying to get the same information.
The issue for this thread was the importance of W4 to the OTP and the charges she is bringing. I was looking at the extent of reliance the PTC may have had on W4 to confirm the charges and if without W4 the remaining W11 and W12 are strong enough to sustain the charges.
Of particular concern of course is the evidence of W4 being allegedly corroborated by W11. Now how does one corroborate a lie if we are to conclude the recanting of evidence by W4 means all he had said were lies?
Unfortunately we have been derailed into discussing what evidence can be carried from the confirmation hearings to the TC and that is not what I wanted to know. I will be starting a thread on that in the next few days.
For now how about channeling our debates on W4?
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Post by b6k on Feb 10, 2013 12:13:10 GMT 3
[ post=115897 time=1360279128] 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 If I remember my geography correct from Belgium, b6k, should Rotterdam not be within 30km of the Hague? Is there an airport there? But I know it has a large-container port with busy ships in and out, and Uhuruto could easily slip away as sto-aways! ;D Don't tell me you are an ISS alumni! ;D ;D ;D Indeed Rotterdam does fall within the 27km radius so the mboys may very well attempt a stowaway on a Liberian registered vessel ;D No comment on my alma mater. It may be used to zero in on my identity. That would be TMI on a forum such as Jukwaa at a time when people's identities are being sought by the likes of Bitange Ndemo. I heard him lamenting recently that Kenyan ISP's are not making ID'ing anonymous bloggers easy as they do not give each individual user a unique address but rather use a general IP for most users. God bless Kenyan ISPs ;D ;D ;D
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Post by abdulmote on Feb 10, 2013 16:24:30 GMT 3
From what I can observe on the periphery without having read the relevant evidence given by the three witnesses; we have evidence which was being relied upon, as given by W4 and corroborated by two other witnesses. W4 subsequently 'recants' his evidence, confessing to being a liar. In other words, his evidence was not truth based but simply a lie and as a result he is out and cannot be relied upon with his evidence.
Then we have the other two witnesses, who presumably are still standing by their evidence as given, which simply 'corroborates' W4's and can still be relied upon. Now, if we look at the meaning of corroborate and according to Cambridge dictionary, it means 'to add proof to an account, statement, idea, etc. with new information'. In other words, the other two witnesses gave their own account of what took place, which simply 'confirmed' W4's account, but in fact their evidence was not necessarily being dependent on what W4 had stated but rather independent of the same!
Alternatively, it may be that either W4 was indeed telling the truth and subsequently decided to 'recant' and declare his 'truth' as a lie, with the obvious intention. But that does not make W11 + W12 as liars as well. Or W4 could have been telling a lie, which was also 'corroborated' with the other two (in their own independent version, by telling a lie as well), and subsequently decided to tell the truth! In other words, making the other two corroborating witnesses as liars just as well.
Bottom line is the TC will have to assess these two sets of contradicting evidence and decide which one is still reliable; W4's as updated or the corroborating witnesses' as it stands independently, despite W4's recanting and that is what we may have to specifically focus upon.
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Post by kamalet on Feb 10, 2013 17:00:11 GMT 3
From what I can observe on the periphery without having read the relevant evidence given by the three witnesses; we have evidence which was being relied upon, as given by W4 and corroborated by two other witnesses. W4 subsequently 'recants' his evidence, confessing to being a liar. In other words, his evidence was not truth based but simply a lie and as a result he is out and cannot be relied upon with his evidence. Then we have the other two witnesses, who presumably are still standing by their evidence as given, which simply 'corroborates' W4's and can still be relied upon. Now, if we look at the meaning of corroborate and according to Cambridge dictionary, it means 'to add proof to an account, statement, idea, etc. with new information'. In other words, the other two witnesses gave their own account of what took place, which simply 'confirmed' W4's account, but in fact their evidence was not necessarily being dependent on what W4 had stated but rather independent of the same! Alternatively, it may be that either W4 was indeed telling the truth and subsequently decided to 'recant' and declare his 'truth' as a lie, with the obvious intention. But that does not make W11 + W12 as liars as well. Or W4 could have been telling a lie, which was also 'corroborated' with the other two (in their own independent version, by telling a lie as well), and subsequently decided to tell the truth! In other words, making the other two corroborating witnesses as liars just as well. Bottom line is the TC will have to assess these two sets of contradicting evidence and decide which one is still reliable; W4's as updated or the corroborating witnesses' as it stands independently, despite W4's recanting and that is what we may have to specifically focus upon. Abdulmote Obviously you appear not to have read the confirmation ruling that is the genesis of this debate. Your academic definition of 'corroborating evidence' fails on the account of ignoring the relationship of the evidence from W11 and W12 and that of W4. The 'owner' of the facts in this case happens to be W4 and the other two characters are only providing confirmation of what they had heard from another witness. Under the circumstances it is untenable that that what the witnesses heard must have been wrong if the original source of the information recants the evidence. but in keeping with the theme of this thread,I note what you say and we shall be coming back to the details of the evidence!
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Post by furaha on Feb 10, 2013 18:09:42 GMT 3
From what I can observe on the periphery without having read the relevant evidence given by the three witnesses; we have evidence which was being relied upon, as given by W4 and corroborated by two other witnesses. W4 subsequently 'recants' his evidence, confessing to being a liar. In other words, his evidence was not truth based but simply a lie and as a result he is out and cannot be relied upon with his evidence. Then we have the other two witnesses, who presumably are still standing by their evidence as given, which simply 'corroborates' W4's and can still be relied upon. Now, if we look at the meaning of corroborate and according to Cambridge dictionary, it means 'to add proof to an account, statement, idea, etc. with new information'. In other words, the other two witnesses gave their own account of what took place, which simply 'confirmed' W4's account, but in fact their evidence was not necessarily being dependent on what W4 had stated but rather independent of the same! Alternatively, it may be that either W4 was indeed telling the truth and subsequently decided to 'recant' and declare his 'truth' as a lie, with the obvious intention. But that does not make W11 + W12 as liars as well. Or W4 could have been telling a lie, which was also 'corroborated' with the other two (in their own independent version, by telling a lie as well), and subsequently decided to tell the truth! In other words, making the other two corroborating witnesses as liars just as well. Bottom line is the TC will have to assess these two sets of contradicting evidence and decide which one is still reliable; W4's as updated or the corroborating witnesses' as it stands independently, despite W4's recanting and that is what we may have to specifically focus upon. Abdulmote Obviously you appear not to have read the confirmation ruling that is the genesis of this debate. Your academic definition of 'corroborating evidence' fails on the account of ignoring the relationship of the evidence from W11 and W12 and that of W4. The 'owner' of the facts in this case happens to be W4 and the other two characters are only providing confirmation of what they had heard from another witness. Under the circumstances it is untenable that that what the witnesses heard must have been wrong if the original source of the information recants the evidence. but in keeping with the theme of this thread,I note what you say and we shall be coming back to the details of the evidence! Kamalet I think it is important to re-state something our resident expert said when the news about OTP-4 broke: Witness 4 is among the cases where the OTP has provided the court with evidence that leaks from the Defense led to the harassment and threats to witnesses. That is important for how you look at this situation. There's clearly more than meets the eye. Interference with witnesses is a serious crime. The court has the details. We do not. And bear in mind also that the prosecutor has not yet released all information available to her to the defense. So even in the unlikely case that you have friends in the defense team who tell you all they know, you still would not have the whole picture. So the best approach is to wait and see how things unfold. We can speculate all we want but at present we are dealing with too many known and unknown knows. The spin around the withdrawal of witness OTP-4 has been enormous. That leads me to the conclusion that it is primarily seen as a useful campaign tool for TNA. And perhaps it is. But beware, useful campaign tools do not necessarily double as good defense strategy. I will certainly read your new thread whenever you start it, but if I were you I would not put too much effort into it. It would be a very speculative piece. Furaha Read more: jukwaa.proboards.com/index.cgi?board=general&action=display&thread=7906#ixzz2KVZ7Gxmq
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Post by OtishOtish on Feb 10, 2013 18:42:18 GMT 3
I'm still a little tired of this thread, so for today I'll just rehash some what I already wrote and continue on another day. It is certainly possible that Bwana 4 told a few fibs. But quite a few things have also happened since (in late 2011) the Defence leaked his identity to its associates. The whole business is certainly very complicated, and we might as well just wait and see. The Defence fireworks at this stage is very deliberate and is caculated for its (expected) political effect. Note that by early October or so, all of the transcripts of Bwana 4's OTP interviews had already been released to the Defence. In early December 2012, the defence made its last submissions on the Updated DCC; they said nothing about Bwana 4. The only surpise here is that they waited for so long to start the current noise; I had expected to get going in early January. See my first entry (repeated in the last entry) on this thread: jukwaa.proboards.com/index.cgi?board=general&action=display&thread=7594 On debates about "corroboration", there's interesting bits like this one (from a guy who was supposedly actually there): 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.My little gourd, 11 beans, and ancient leopard-skin tell me that Bensouda quite some time ago prepared herself for this. So, let's see. And I'm not sure that another thread will shed more light.
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Post by Daktari wa makazi on Feb 10, 2013 20:06:42 GMT 3
KamaletYour question is a moot one as the Court has yet to decide on it. I see though everyone is busy running a mile from the stink it caused. My observation of non-objectivity comes to mind. The Defence of Muthaura made an application ( made only on 7 Feb 2013) by Khan QC which the TC will have to decide before the Trial starts. That is the document you posted on your opening post. I think there is serious issues here for the Court to decide from which I see a premature abortion of the Trial especially on Muthaura's side, if there is no cop-out. The other issue is the Court's reaching a decision on DDC (Document containing charges) in Dec 2012, in which their judgements where two judges offered different opinions from the majority with one dissenting seems to allow a modified version of the DCC. Importantly, in the defence application, w4 (a prosecution witness) is laid bare. S/he came to prominence through late disclosures of potentially exonerating evidence (PEXO) and from that disclosure, the OTP seems to change its strategy deciding to drop the core planning meeting alleged at confirmation and, additionally, no longer seeks to rely upon the only witness (w4) it presented to prove that meeting at the confirmation stage. The defence claims that the OTP had that information (PEXO) before the confirmation but only released the same afterwards. (ii) The Prosecutor has withdrawn the principal witness (and indeed only witness to the alleged [REDACTED] meeting) and has also withdrawn the core facts and circumstances that underpinned the case confirmed by the PTC. The effect of this is that if the case proceeds to trial. Ambassador Muthaura will be required to defend himself against a fundamentally new case and one that has never been subject to judicial scrutiny in its core and material particulars; and
(iii) The OTP is now relying on wholly new material facts that have not been subjected to judicial scrutiny through the confirmation hearing procedure. The defence, thus, is asking for a fresh confirmation hearing, on the basis of the information of PEXO. Having read that, it seemed to be me, the defence of Muthuara has struck at the heart of the prosecution to force them to withdraw a witness who they used at the confirmation stage. And the question they ask - where the information, which forced the withdrawal of the witness, now available, was made available, would the case against Muthaura be confirmed? We shall await with glee the Court response. On the question you posited, it is clear to me that where a tainted evidence has been uprooted which was used at the confirmation stage, the only fair way is either to rehear the confirmation without that evidence ( to exclude it in toto) or conduct a preliminary hearing to determine the probative value of that evidence before the commencement of the Trial. The issue of corroborated does not come into play. These are direct source evidence, where someone says they heard and were participatory to a command structure. Abdul's argument could hold water if we were talking about circumstantial evidence from an indirect source, where a few individuals saying similar things can be used to connect the dots. On the related matter of charges proffered by the prosecutor in the DCC, I thought the Court came with all sorts of excuses which to me seems to be nothing more that face saving. It would have a shame to refuse to admit the DCC because that would have meant they throw out the case prematurely. How could they throw out the case before it even started in earnest? They, in a nutshell, want the TC to decide the matter holistically after hearing all the evidence, in a way passing the buck. Here is the cop out the Court used on the DCC, Furthermore, the defence has not sought the Chamber's leave to file a response to the prosecution's submissions. The Defence Response was thus filed without authorisation and its content shall not be considered.
10. In addition, as far as the defence's request for referral of certain issues (to the Pre- Trial Chamber) is concemed,^^ the Chamber notes, at any rate, that the defence does not identify specific issues in relation to which it seeks referral. It is also not clear from the defence's submissions why clarification by the Pre-Trial Chamber is necessary in this instance. The Chamber notes in this connection that the parties' disputes over modifications to the DCC do not appear to result from the parties' difficulties in interpreting the Pre-Trial Chamber's findings. Rather, these disputes concern the impact of the Pre-Trial Chamber's findings on the content of the DCC, an issue which the Chamber may resolve itself, without referral to the Pre-Trial.
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