Ocampo’s fresh bid for tough terms fails

International Criminal Court Prosecutor Luis Moreno-Ocampo during the opening of the National Dialogue and Reconciliation conference in Nairobi on December 2, last year.

What you need to know:

Tough conditions the judge rejected

  • Uhuru, Muthaura and Ali to deposit bond with the ICC.
  • To appear at the court in person every six months
  • To declare full financial information including addresses
  • To certify under oath that they will comply fully with all conditions
  • Not to make public statements threatening witnesses

A judge Thursday refused Prosecutor Luis Moreno-Ocampo’s request to order that suspects declare their wealth.

The declaration was among a raft of tougher bail conditions, including being asked to pay some money, that Mr Moreno-Ocampo wanted imposed on Deputy Prime Minister Uhuru Kenyatta, Public Service boss Francis Muthaura and Postmaster-General Hussein Ali. The International Criminal Court (ICC) prosecutor believes that the three, because of their positions, might interfere with witnesses and affect investigations.

ICC Pre-Trial Chamber 1 presiding judge Ekaterina Trendafilova said that some of the conditions had already been rejected by the chamber when it made a decision to summon the suspects.

She ruled that the prosecutor had not demonstrated what had changed since the summonses were issued for the court to impose more conditions. “The prosecutor’s request should be supported by proper grounds, showing the change of circumstances that would justify the adoption of any additional measure, in particular when one or more of these measures had already been rejected under the circumstances in force at the time of the previous ruling of the chamber,” she ruled.

It was the second loss in as many days for Mr Moreno-Ocampo, whose determination to keep secret some of the evidence against the suspects was thrown out on Wednesday.

The prosecutor had asked the court to impose additional conditions on Mr Kenyatta, Mr Muthaura and Maj-Gen Ali.

“The prosecution shares the chamber’s resolve that, if the suspects remain free pending confirmation, adequate conditions should be imposed to guarantee that they continue to appear voluntarily and that they not obstruct or endanger the investigation or the Court’s proceedings,” he said in his submissions.

He argued the conditions were meant to ensure the suspects who hold public offices, appear voluntarily before the court and do not endanger investigations.

He had said that since Mr Kenyatta sits on the Witness Protection Board, Mr Muthaura chairs the National Security Advisory Committee and Maj-Gen Ali is a former police commissioner, they were likely to influence witnesses and obstruct investigations. Mr Muthaura and Mr Kenyatta have since quit the posts.

He wanted them to declare their wealth, deposit a bond with the court and provide their residential, home and e-mail addresses as well as telephone numbers.

Further, the prosecutor wanted the suspects to appear in person at the court at least once every six months.

The other suspects are MPs William Ruto, Henry Kosgey and radio presenter Joshua Sang.

Tougher conditions

In her ruling on Thursday, Judge Trendafilova agreed with defence lawyers that the prosecutor had failed to prove that circumstances had changed to warrant tougher conditions.

Explaining the implication of the ruling, an ICC official said suspects will only be required to observe the conditions that were imposed on them on March 8.

Said Mr Fadi el Abdallah: “The ruling means that the conditions originally imposed on the suspects remain the same, and does not have broader effect on the case. The proceedings continue as already planned and in accordance with the decisions of the chamber.”

On Wednesday, Mr Moreno-Ocampo lost the bid to withhold crucial evidence against the six suspects who have already appeared before the chamber to be informed that they could face charges of crimes against humanity, including murder, rape, forcible transfer and persecution.

The Pre-Trial Chamber ordered Mr Moreno-Ocampo to reveal all his evidence to lawyers to enable them prepare their defence.
The court also gave Mr Moreno-Ocampo three distinct dates to release evidence to the six suspects.

The prosecutor had requested that the process be delayed until a decision is made on Kenya’s case challenging the admissibility of the cases.

The judge rejected the request, saying the appeal could not stop court proceedings and the argument had no legal basis.

The judge said Kenya’s appeal could only hinder investigations, but not court proceedings.

“An investigation is not a judicial proceeding, but an inquiry conducted by the prosecutor into the commission of a crime with a view to bringing to justice those deemed responsible,” she ruled. Mr Moreno-Ocampo had argued that revealing of the identities of witnesses would endanger them.

“The court rejects the application and orders the prosecutor to disclose to the defence any evidence on which he intends to rely for the purposes of the confirmation of charges hearing,” she ordered.

The judge asked him to allow the defence lawyers to inspect any books, documents, photographs and objects that he intends to use as a soon as possible.

She also ordered the defence teams to share with the prosecutor evidence they intend to present at the confirmation hearing and to file the list of such evidence by Monday, September 5.

And if they want to conceal some, they will have to submit the proposals to the chamber by Friday, August 12.

“The single judge orders the defence teams to notify the prosecutor of their intention, if any, to raise the existence of an alibi or to raise a ground for excluding criminal responsibility, and to present the evidence on which they intend to rely for either purpose, sufficiently in advance to enable the prosecutor prepare adequately and to respond,” the judge said.


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