LIVE: ICC status conference on Uhuru case

Defence Lawyer Steve Kay at the ICC Status Conference on February 5, 2014. Photo/NTVKenya

5:40pm: Submissions are concluded as Judge Ozaki adjourns the Status Conference.

5:29pm Gaynor: Reg 60 of the OTP refers to the evidence available which includes the evidence that the Government of Kenya has obstructed access to.

5:26pm Gaynor: There seems to be a Chinese wall between Kay and the Government of Kenya which is fine but the court is concerned with the actions of Mr Kenyatta during Kibaki's tenure and even now. The fact remains that there was massive obstruction to availability of evidence from phone companies and the government. Nobody wants a conviction based on false evidence.

5:24pm Judge Ozaki asks when OTP can present written submissions on the same. OTP to present on February 10.

Defence asked if it can respond, Lawyer Steve Kay requests for 7 days after the written submissions. Gaynor agrees.

5:23pm: Gaynor: International view seems to be that there is judicial control. Termination of charges and withdrawal of charges are similar. Prosecution must seek authorisation in both cases.

5:20pm: Kay: Reg 60 of OTP regulations applies now and since there is insufficient evidence the Court may move to terminate the case. In those circumstances, verdicts of 'not guilty' can be entered.

5:11pm OTP: The case is still before the court and orders need to be made. One fundamental difference is the question of whether or not the conclusion of the case would prevent any other charges. The discontinuing of the case would not have any such consequence. It would be disastrous if it were to.

5:07pm OTP: The correct procedure is that Prosecution comes before the Chamber and under Article 61(9) and Reg 60 she withdraws the charges without leave.

4:58pm OTP says question asked by the court is complex as Judge Ozaki asks him to be concise.

ICC lawyer for the Office of the Prosecutor Ben Gumpert. Photo/NTVKenya

4:53pm: OTP: The discretion to withdraw charges is held by the Prosecutor and can be made without leave of the court up until opening of the trial.

In the Muthaura case, Defence and Prosecution were unanimous that charges be withdrawn.

Kenya's Uhuru Kenyatta (2ndL) and Francis Muthaura (2ndR) attend a hearing, at the International Criminal Court in The Hague, on April 8, 2011. Photo/FILE

4:49pm Judge Ozaki thanks all parties and participants, says bench has two more questions.

What is the appropriate procedure for withdrawal of charges? What is the difference between termination of proceedings and withdrawal of charges?

4:44pm: Kay: I don't know what the laws governing such issues in Kenya are. I know that in Yugoslavia you have to give a reason for request of such evidence. It seems to me that communication broke down between the Prosecutor and the Kenyan Govt.

4:43pm Judge Fremr to Kay: Did I understand you correct when you said that the Kenya Government did not give evidence because it was not the court that made the request but the Prosecution?

*Steve Kay ends submissions for Defence*

4:41pm Kay: The politics of this matter should not be a consideration in this case. Sometimes courts are faced with tough decisions. Those decisions may disappoint people at the time they are made. But they are the right decisions. Because history shows that bad decisions do not go away. That is what happened with the confirmation of charges hearing.

4:39pm: Kay: Stirring up emotions with unfounded allegations in our submission is unhelpful. We have come to the stage where the case presented reveals that it is a case based on falsity. The Prosecution knows that.

4:35pm: Kay: Uhuru Kenyatta gave evidence at the confirmation of charges hearing. He called a witness. He cooperated with the court.

4:34pm: Judge Ozaki to Defence: I thought you asked for the floor to respond to Mr Gaynor's submissions.

4:31pm Kay: We have released tapes of interviews to the Prosecution so that they could hear for themselves what the witnesses came to us and wanted money but we didn't want to go down that root and off they went to a supposed civil society member who diverted them to the Prosecution. This case was a case not based on truth and that is what should be of concern to the victim's counsel.

4:29pm Kay: The problem with public statements made by Gaynor is that it builds expectations that the case they have built is a true case.

This makes the witnesses and opponents in court believe that the narrative was the truth. And that is probably why Pretrial Chamber II rejected all the Defence evidence and made the wrong decision to confirm charges. But we warned everybody. We came back to this court when it was revealed that witnesses lied.

4:25pm Kay: The evidence upon which Mr Kenyatta's charges are based has subsequently been found to be false. Statements made by Witnesses 4 and 12 were lies. It was the Defence that alerted the court over the unreliability of the evidence. False stories need to be discarded by courts.

4:20pm Kay: People are tried on evidence and not statements made in the media. Prosecution's common plan theory relied on two main witnesses and their statements.

*Defence Lawyer Steve Kay makes his submissions*

4:00pm OTP: Evidence about Kenyatta's financial transactions at the time of the post election violence is available but withheld by the Govt of Kenya.

3:30pm ICC status conference resumes.

*Livestream transmission delayed by approximately 30mins*

*Court adjourns for lunch break; to resume at 3:30pm Kenyan time*

2:19: Judge Ozaki: Defence will be given chance to respond to any issues. I agree that Mr Gaynor's submission was a repetition but the bench decided to listen because this procedure has immense impact on the case.

2:18pm Kay: There has been a repetition of written submissions and issues of justice weren't addressed. We request to respond to the allegations made.

2:13pm OTP: Kenya says it is not obligated to coop with the OTP, only the Court itself, and now says it's even improper to coop with Office of the Prosecutor.

However Kenya has cooperated with the OTP in the past so there is a contradiction here.

2:11pm: OTP says it will answer the judge's question during afternoon proceedings.

2:10pm Judge Ozaki to OTP: Since you do not have requisite evidence, on what legal basis do you seek a continuation of proceedings?

*Gaynor ends his submission*

2:08pm Gaynor: They say in Kiswahili that haki huinuwa taifa (justice elevates a nation). Truth and transparency must prevail.

2:05pm Gaynor: Where ICC intervenes, it raises hope of justice. Victims have legitimate expectation that the court will do all it can to get to the truth.

To bring justice only to Kikuyu victims but not to Kalenjin, Luo, Luhya & Kisii will not enhance the reconciliation process. For justice there must be State cooperation.

2:00pm Gaynor: It was perhaps the very threat of ICC prosecution that deterred post election violence in 2013. To terminate proceedings would have a devastating affect on the court's deterrence effect.

If the court does not take available measures to enforce cooperation, it will show that State obstruction of access to evidence is a viable strategy.

1:57pm Gaynor: No matter how powerful the individual is in the world his interests must yield to need for evidence in a criminal trial.

He (Kenyatta) has not been to the ICC since October 2011. He does not even want to be present for the opening statements of this case including those of victims.

This accused is at liberty and in full control of the Government of Kenya. Prosecution investigations must continue until cooperation is fully delivered.

1:50pm Gaynor: Kenya is a regional leader in mobile telephone usage including mobile banking. Telephone companies are among the biggest taxpayers and their licences are subject to renewal by the Government of Kenya.

It is highly unlikely that any phone telephone company would act in such a manner to obstruct the Prosecution without orders from elsewhere. CLICK HERE to watch the ICC status conference live

Defence arguments of the right to privacy and self incrimination privilege is illogical & renders cooperation provisions meaningless

1:48pm Gaynor: The Prosecution was prevented from interviewing 10 key police officers because of a temporary order. The AG did not seek an injunction of the order. The deliberate blocking is not a small matter.

1:44pm Gaynor: The International Crimes Division of the High Court-- sometimes presented as Kenyan's answer to this issue --remains highly un-operational.

Kenya has technologically advanced courtrooms & lawyers. What lacks is the will to prosecute.

What has he (Kenyatta) got to hide? Why doesn't he do something, anything to assist the victims know the truth about what happened in the past?

1:38pm Gaynor: There are serious concerns over safety of witnesses. Kenya has not prosecuted post election violence crimes domestically.

In the international arena, the Kenyan State has promised it would prosecute persons of highest authority - but promises have not been kept.

The Kenyan task force is just a smoke-screen. Lack of prosecution continues with the current presidency. This confirms the impunity of high level figures.

1:36pm Gaynor: The accused's revocation of racism to undermine the ICC is an insult to victims. Justice is not a European or African invention.

1:32pm Gaynor: On Mashujaa Day (Heroes Day on October 20) last year, the accused said in Kiswahili "This is an issue that will disappear. That devil will be defeated." The word shetani means devil or demon and it was used to refer to the ICC.

1:28pm Gaynor: Lack of evidence must be attributed to the President of Kenya.

Kenyatta used State funds to sent high level delegation to the AU, ASP, UN to propose amendments Rule 6.

He has financed campaigns to attack the ICC while ignoring and not financing support for victims of post election violence.

Rule 68 amendment at ASP 12 was a solution to wide spread witness interference; why was Kenyatta against it?

1:27pm Gaynor: There have been unprecedented levels of witness intimidation and interference. The accused has devoted enormous resources to end the case.

The national Commissioner of Police himself was charged but there was no interest in taking evidence which might implicate him.

Little wonder that the Kenyatta case has suffered such devastating setbacks.

1:22pm Gaynor: This is no ordinary case. How can the OTP investigators access necessary evidence when police are implicated themselves.

Prosecution was deliberately misled on the accessibility of data and when it became available it was fabricated. Witnesses were intimidated.

1:20pm Gaynor: Obligation is not on the Prosecution to bring the matter to the court. It is on the State to act "promptly.

There is fear among Kenyan witnesses. This has seriously hampered emergence of truth about who was responsible for the violence. Victims want the case to continue.

30 meetings were held with 555 post-election violence victims who described their nightmare which many are still trying to wake from.

1:18pm Legal Representative of Victims Fergal Gaynor making his submissions.

1:17pm Judge Ozaki: I think Mr Kay you have said enough about the Government of Kenya's cooperation.

1:16pm Kay: Our submission is that the nature of filing on Friday is a convenient attempt by the Prosecution to try stop the case through a blame shifting exercise. That is not right and it is not fair.

Our submissions on the matter is that the position has not been unreasonable. To start seeking orders from the ASP is high-handed. The Prosecution is an organ of the court. Any reasonable interpretation looking into Article 93 brings into focus the distinction between the two. CLICK HERE to watch the status conference live

1:11pm Kay: The position of the Govt of Kenya may not be unreasonable in this matter, other tribunals have a similar procedure available to them.

A quick survey of the various procedures that exist in other institutions, reveal that indeed they always specify the Chamber, Prosecutor; there is always a title as to who may take the title requisition.

1:10pm Kay: Why I say this has become a change in position after the Prosecution realised the case has collapsed, the Prosecution never came here for a ruling on the matter.

It became a series of letter battles with the Government of Kenya.

1:07pm Kay: It has been made to seem like the responsibility for the failure of the case lies at the feet of the Government of Kenya.

The Government has been consistent that requests from Prosecution should come from the Court and that has been a consistent position for the last two years. It has been made clear to the Prosecution.

1:06pm Judge Ozaki to Defence: We note there were a number of new issues, we'd like to invite you to make those submissions in response to those issues.

1:05pm OTP: If I were given the choice, I would prefer to make my submissions in response to Defence applications having heard Mr Kay but I am in the court's hands

1:00pm OTP: You are absolutely right Your Honour. We do not know what is contained in there. We have been presented from seeing Mr Kenyatta's financial records.

It is nearly two years since we asked for this material. We characterise this as pure obstruction. We are under duty to continue with investigations as other people will be coming forward.

As noted in recent findings, they have. But we have to take a realistic view based on our previous experience.

It is important that states parties adhere to their obligations under Rome Statute such as assisting with requests by Court

If Court agrees with the prosecution, failure must be referred to Assembly of States Parties

12:59pm Even if the Government of Kenya were to comply the Prosecution is not sure that the evidence presented will suffice, Judge Ozaki says.

12:57pm Gaynor says they do not oppose application by Government of Kenya.

12:53pm Gumpert: Investigative steps have not borne fruit and so prosecution says Kenya government has obstructed investigation.

12:49pm Judge Ozaki asks if this is second application to replace the one for 3 month adjournment. Gumpert says "yes."

Tweet from JFJustice:

*OTP--Office of the Prosecutor*

12:47pm: Bench has no intention to make any decision during this status conference, Presiding Judge Ozaki says

CLICK HERE to watch the status conference live

12:45pm OTP says the office assumes that no decisions will be made today by the trial chamber

12:44pm OTP: Filing from Government of Kenya was received yesterday evening. OTP would like to make remarks on this.

12:42pm OTP: We do not have sufficient evidence to show beyond reasonable doubt guilt of Kenyatta at this time.

12:30pm: Presiding Judge Ozaki asks prosecution for update on status of investigations in President Uhuru Kenyatta's case.

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