Prosecutor Luis Moreno-Ocampo has reopened the fight over witnesses and the evidence he is relying on to try post election violence suspects.
Mr Moreno-Ocampo has sought permission to appeal an order by the International Criminal Court requiring him to share with defence lawyers the number of witnesses, type of evidence and witness statements he intends to use in the case against six Kenyans.
The suspects are Deputy Prime Minister Uhuru Kenyatta, Public Service boss Francis Muthaura, Postmaster-General Hussein Ali, MPs William Ruto and Henry Kosgey and broadcaster Joshua Sang.
The intention to appeal was made on Wednesday, five days before the court starts reviewing the status of the information sharing.
Defence lawyers told the Nation that they would fight the appeal.
“We will oppose it vigorously. It is an indication that the prosecutor is developing cold feet. He is under obligation to disclose sufficient information to enable us prepare our defence,” said Mr Gershom Otachi, who represents Maj-Gen Ali.
He pointed out that the prosecutor had been advised that Kenya’s challenge on admissibility of the case could not stop the disclosure and other court processes.
Dr Kithure Kindiki, representing Mr Ruto, said the move was unlikely to derail the proceedings. “The prosecutor seeks to overturn a decision made in court last week. We will seek to strike down the application because it contravenes the suspects’ rights to a fair trial. It is the right of the suspects to access both incriminating and exonerating evidence sufficient enough to prepare their defence,” Dr Kindiki said.
The prosecutor is seeking leave to appeal the decision saying that it “creates extra-statutory duties for the prosecution that go beyond the proper scope of pre-confirmation disclosure” set out in law.
He argues that what Judge Ekaterina Trendafilova ordered him to do is different from the procedure followed in other cases. In those other cases, the prosecutor was not required to reveal everything before the charges were confirmed, he said.
He further tells the Pre-Trial Chamber II that the decision adversely affects the prosecution’s independence and authority by forcing it to divert its resources to extra-statutory duties instead of the investigation and prosecution of other cases.
He now wants the Chamber to allow him to seek the intervention of the Appeals Chamber as the Ocampo Six defence lawyers prepare for a meeting on Monday where the prosecutor will start revealing a summary of the evidence he has against their clients.
“Absent such intervention by the Appeals Chamber, the Prosecution will continue to face uncertainty in each case as to whether extra-statutory disclosure/inspection obligations will be imposed, which hampers its right to intelligently prepare for and marshal its resources in advance of the confirmation hearing,” Mr Moreno-Ocampo says in his application.
He wants the Appeal Chamber to rule whether the Statute and Rules impose a duty on the prosecution to explain to the defence the potential relevance of non-incriminatory evidence.
The prosecutor wants appeal judges to decide whether he is obliged to disclose to the defence all evidence in his possession or control. He also wants a decision on whether judges may require the prosecution to provide them with all the material made available to the defence that is not intended to be introduced into evidence at the confirmation hearing.
Mr Moreno-Ocampo has asked that his application be considered by all the judges arguing that “issues have broad consequences beyond the everyday case management decisions normally entrusted to the Single Judge”.
Last week, Judge Trendafilova, as Single Judge, ruled that the parties to the Kenyan cases at The Hague will be required to give any evidence and supporting material that they seek to use during the hearings.
“With respect to the different requests related to protective measures for witnesses including redactions, the Single Judge wishes to make clear that any such request must be submitted as soon as practicable, but no later than the date which shall be specified in a calendar to be issued in due course,” Judge Trendafilova said.
She also ordered the prosecutor to submit a report indicating the number of documents and materials he may have received showing the suspects are not guilty. They will also indicate the possibility, if any, for waiving the restrictions imposed by the source of the information.