The International Criminal Court on Monday gave an indication that the trials against Kenya’s post-election violence suspects, among them two presidential candidates, will most likely start after the coming polls.
The prosecution agreed with the lawyers for Eldoret North MP William Ruto and radio presenter Joshua arap Sang that the trial date should be set after March 2013. Read (Hague-bound Sang hopes for the best)
The prosecution said that it would require time ending at the end of March to disclose the incriminating evidence it holds against the two suspects.
Mr Ruto and Mr Sang will, however, have to wait until July 13 to know when their trials begin. Judge Kuniko Ozaki made the announcement after listening to the defence and prosecution on when they want the trials to commence.
“The chamber will be making an order on the trial date and also the timetable for the disclosure by the time we take the summer recess,” said Judge Ozaki.
ICC’s summer judicial recess will start on July 13, according to information on its website. The other Judges in the case are Chile Eboe-Osuji and Christine Van den Wyngaert.
The prosecution also told the judges that they would finish disclosing incriminating evidence against the two by the end of March 2013 and was not opposed to the request by the suspects that the date comes after the elections.
The prosecution, however said that if the date is set after the Kenyan elections, then the suspects should be required to make a “written undertaking” that they will not skip trial.
Mr Ruto and Mr Sang have said that the trial could interfere with their political ambitions ahead of the elections.
The defence said it was not opposed to this arrangement with Mr Sang’s lawyer Katwa Kigen, saying that they would need enough time to prepare after this.
Mr Ruto’s lawyer David Hooper, however, said it was not necessary to have the suspects give a written undertaking since they have been cooperating with the court.
Victims’ legal representatives Sureta Chana said that her clients wanted the trial to start soon, arguing that the post-election violence victims were getting impatient and desperate for justice.
The prosecution was without outgoing prosecutor Luis Moreno-Ocampo and his successor Fatou Bensouda, while Mr Ruto was also not in the proceedings.
Deputy Prime Minister Uhuru Kenyatta and former head of civil service Francis Muthaura’s lawyers will meet the prosecution and the judges for their status conference on Tuesday, when similar submissions are likely to be made.
Mr Ruto and Mr Kenyatta are running for presidency and from the ICC developments, unless they are faced with the integrity question debate locally they are free to campaign and have their names on the ballot should the judges agree with their lawyers and the prosecution.
At the start of the sitting, the ICC Trial Chamber V started with sending condolences to Kenya’s Sunday helicopter crash victims.
Mr Hooper termed the sudden death of Internal Security Minister George Saitoti as devastating saying he was a potential witness for Mr Ruto.
The prosecution said that the setting of the date depended on the scope of the protection of witnesses.
It also added that it was still interviewing witnesses prompting the judges to ask whether it was ready for trial.
“We have a pool of witnesses that we are interviewing and there are issues of protection of witnesses that we are tackling currently. We have the same witness. However, because of the situation in Kenya and some of the issues which have affected some witnesses, we are interviewing other witnesses,” said the prosecution.
The prosecution added that witness protection was the key issue that had led to the request that it be allowed until March 2013 to disclose its evidence.
It added that it could not estimate at this time, the number of witnesses who do not need protection.
The judges also asked the defence, the registry and the prosecution to consult and agree on a common ground on redactions.
Judge Ozaki said that the proposal on the matter should be sent to the trial chamber for review by July 3.
Mr Hooper told the court that the prosecution should apply to the chamber to allow that some witnesses be revealed 30 days before they give their testimony.
He, however, said that the period was too short and proposed that this period be extended to 45 days.
“Prosecution must justify all redactions. We support the judges continuing to have control of the process. We can have a blanket process of redaction on all documents without justification,” said Mr Hooper.
Mr Kigen asked the judges to supervise the disclosure process saying that all redactions by the prosecution should be properly justified.
He added that the documents at the pre-trial process were too redacted, hampering the defence preparation.
The meeting also discussed organisational policy, with the defence asking for a new definition other than that determined by the pre-trial chamber.
The defence argued that the Chamber is not bound by the definition of the organisational policy as concluded by the pre-trial chamber.
When asked the prosecution said that the issue had been sorted by the pre-trial chamber and the judges should “rely on this definition.”
Judge Kuniko said that all emails should be copied to all parties but all submissions should follow the set out filing process.