Muthaura. Uhuru differ over trial date

By Wahome Thuku

Former Head of the Civil Service Francis Muthaura has rejected the position of his co-accused Uhuru Kenyatta that their trials be held after the General Election.

Speaking at the International Criminal Court (ICC) Trial Chamber V status conference on the second Kenya case at The Hague, The Netherlands, Muthaura’s lawyer, Karim Khan told the judges his client, who was seated next to him, did not want any further delays to the impending trial.

Muthaura’s position differed sharply with that of Deputy Prime Minister Uhuru, the ICC Prosecutor’s office, and the suspects in the first Kenya case, Eldoret North MP, William Ruto, and radio executive Joshua arap Sang.

All four prefer that the trials begin after the elections in March for different reasons. Ruto and Uhuru have insisted they will be on the presidential ballot, while the court has previously said Kenya’s elections have no bearing on its decisions.

The Trial Chamber V judges will publish their ruling on July 13 on the start date for the trials as well as other issues discussed at the status conferences.    

While Uhuru has political considerations, Muthaura, who retired early this year after 30 years in the Civil Service, wants the ICC case off his back, as quickly as possible for him to carry on with his private life.

Khan and Stephen Kay (Uhuru’s lawyer) showed their differences over the dates, as the prosecution, led by the incoming Chief Prosecutor Fatou Bensouda, said that they would be calling between 25 and 35 witnesses to testify against the two.

scope for disclosure

The status conference was the second after a similar one held on Monday for Ruto and Sang.

They are provided for under Article 64(3) of the Rome Statute for the court and the parties to set a trial date, confer on the necessary procedure for fair and expeditious trials, determine the language to be used in the proceedings, and agree on a timetable and scope for disclosure of documents and information for adequate preparation for the case.

Sang and Muthaura attended their proceedings. Uhuru and Ruto, who are now busy with their presidential campaigns, left the sessions to their lawyers. 

On Monday the prosecution said it had no problem with a trial date after March, next year, a position lawyers for Ruto and Sang supported.

On Tuesday, the prosecution asked for the two trials to be synchronised, citing security reasons including the need to protect witnesses.

The prosecutor said they would have been ready to start the trial by end of this year save for the issues regarding redaction of evidence, disclosure, and protection of witnesses.

“The end of this year would be a very ambitious timeline because we still have witness security issues, but we want to start as soon as possible,” said Ms Bensouda, the Gambian who will succeed Luis Moreno-Ocampo as ICC Chief Prosecutor.

In a repeat of the Monday proceedings, the prosecution and the defence differed on the timelines within which documents and other evidence should be disclosed, including identities of witnesses.  Ms Bensouda said her office had 20 materials ready for immediate disclosure.

A second set of 680 items relating to witness identities could only be disclosed after a protocol of redaction had been agreed by the parties and approved by the court.

Over 2,290 items are related to seven witnesses, including 76 interview transcripts of 1,400 pages recorded from five witnesses.

“The prosecution intends to disclose all these materials as soon as redaction has been approved,” she told Chamber V.

fear for safety

She said an additional 1,650 pages of interview transcripts from six witnesses are still being processed. Another 560 items were being reviewed, and may or may not be subject to disclosure. The prosecution is also reviewing 26 audio and video files for evidence.

Bensouda said some witnesses fear for their safety while others are yet to confirm willingness to testify.

“Hopefully we will have finalised by the end of the year,” she told the court. She added they were also requesting State parties to assist with information, which they had not accessed.

The Government last year blocked attempts by ICC investigators to interview members of the Provincial Administration who served in post-election violence hotspots in 2008. Some of the officials also secured court orders blocking the ICC investigators on grounds their testimony might be used against them.

Bensouda explained that they wanted the cases synchronised as happened at the confirmation stage, due to security issues.

“We want to avoid tension arising because of one case moving faster than the other in view of the realities in Kenya,” she added.

Khan argued that his client wanted a speedy trial to clear the dark cloud on his shoulders.

He said his client’s advanced years were a factor and that Muthaura wished to clear his name after “three decades of serving the public”.

Khan said the prosecution should not hide behind the policy of synchronising the cases adding that that could not trample on the legal rights of his client. The lawyer said for nine months they had not received a scrap of evidence from the prosecution and that protection and security of witnesses is being used to delay disclosure.

“Disclosure to the defence should not be confused with the disclosure to the public. We are bound by our professional conduct not to disclose to the public what we receive,” Khan told the judges.

Khan said they had evidence that some of the witnesses under the protection programme had been giving interviews to the media on the cases.

He said if the prosecution had made the disclosure, they would be ready for the trial to begin in September. On his part, Kay said they did not wish to be pressed for time between the disclosure of material and the hearing as happened during the confirmation proceedings.

“The identity of people is very important for us to know who they are and whether they are truthful,” he added.

six-month events

Arguing for a start of the trial next year, Kay said they needed to be well prepared. He also backed synchronising of the two cases, but said the first case should kick off the trials for the judges to understand the chronological narrative of the six-month events of post-election violence.

Counsel for the victims in the second Kenya case, Morris Anyah, told the court his clients wanted an expeditious trial so that issues regarding reparations could be determined.

He said his clients had waited for four years and proposed that the trial begin one year after the decision on the confirmation proceedings.

The parties agreed that the languages to be used in the trial would be English, French, Kiswahili, Kikuyu, and Kalenjin.The court said it would issue a decision on the trial date in due course. Presiding judge Kuniko Ozaki asked the parties to agree on a common system of disclosing redacted evidence.