International Criminal Court plan to tighten noose on suspects

Kenya: Reports have emerged the International Criminal Court (ICC) has drafted a new investigation strategy to address concerns on evidence gathering scheduled for consideration by State parties in November.

Full details of the guidelines, sent to the ICC’s 122 member states last week, have yet to be released, but they focus on ways to ensure the Office of the Prosecutor (OTP) can present a watertight case at trial.

A meeting of member States of ICC is scheduled from November 20-28 with suggestions delegates could press for amendments to the Rome Statute to reform the court given recent concerns about conduct of prosecution.

Key elements include plans for prosecutors to ensure cases are ready at an earlier stage of proceedings, and for court investigators to corroborate evidence collected by third parties, the Institute for War and Peace Reporting posted on its website.

The cases against Kenyan leaders have presented the ICC with headaches with defence teams accusing the prosecution of using intermediaries who have falsified evidence.

President Uhuru Kenyatta has since filed an application seeking stoppage of his trial, citing collection of evidence by intermediaries who he claimed falsified testimony to implicate him.

In the application, Uhuru’s lawyers cited the Lubanga trial to press a case for a review of the evidence to explore whether intermediaries may have attempted to persuade individuals to give false evidence.

Prosecution witnesses

“The defence submits that the extensive evidence set out herein reveals a serious and sustained abuse of the process of the current proceedings by a significant prosecution witness and a significant prosecution intermediary both of whom are responsible for providing the majority of witnesses of fact in this case,” Uhuru’s lawyers, Steven Kay and Gillian Higgins submitted in the application filed on October 10.

“The doctrine of abuse of process require the permanent stay of proceedings where it is impossible to guarantee the accused a fair trial,” added the application.

ICC judges are yet to rule on the application. President Uhuru is scheduled to appear at The Hague on November 12 for start of his trial.

The defence of Deputy President William Ruto, who is on trial at The Hague, has on various stages in ongoing trial proceedings raised similar concerns. In his opening statement, Ruto’s lead lawyer Karim Khan said the prosecution readily accepted tainted evidence and witnesses provided by civil society groups.

Khan went on that these were not subjected to independent and expert investigations, as if the purpose was to “nail Mr Ruto at any cost” rather than uncover the real authors of the post-election violence.

Earlier in April, Belgium Judge Christine Van den Wyngaert withdrew from the Kenyan cases questioning the prosecution’s conduct.

Prior to that ICC prosecutors had dropped charges against former civil service chief Francis Muthaura, Uhuru’s co-accused, after it emerged a key witness lied to investigators.

Since Prosecutor Fatou Bensouda made that decision in March, it has emerged that several witnesses have withdrawn from the cases against Uhuru and Ruto since the charges were confirmed in January 2012.

Arrest warrant

Bensouda has repeatedly highlighted “unprecedented levels” of interference in her cases in Kenya. On October 2, judges unsealed an arrest warrant against a former journalist, Walter Barasa, who is accused of bribing witnesses. Barasa has fought the arrest warrant in the Kenyan High Court and accuses ICC officials of hounding him after he declined to give adverse evidence in the Kenyan cases.

Reports of ICC review of strategy comes against the backdrop of a bi-partisan push by Kenyan lawmakers who prefer Africa pushes for reform of the court rather than pulling out altogether.

Montserrat Carboni, permanent representative to the ICC for the International Federation for Human Rights, told Institute for Peace and War Reporting (IWPR) that the OTP had a tendency to gather just enough evidence to secure an arrest warrant.

The ICC reportedly acknowledges that this kind of approach is a concern. Michel De Smedt, the head of investigations at the court, was quoted saying his office had addressed the problem in its new strategy.

De Smedt told IWPR that investigators were moving away from excessively focused investigations where they collected a limited amount of evidence.-standardmedia

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