THE ICC trial chamber judges in President Uhuru Kenyatta’s case appear to have ignored the latest amendments to Rules of Procedure at last week’s Assembly of State parties in The Hague.
The judges yesterday issued guidelines for Uhuru’s trial starting on February 5 and said it would be held in “alternating four week blocks” to Deputy President William Ruto’s case.
Last week the Assembly of State Parties amended the ICC rules to allow trial via video link, representation through a counsel, and excusal from trial due to “extraordinary public duties.”
However judges Kuniko Ozaki, Chile Eboe-Osuji and Robert Fremr yesterday did not refer to any change of circumstances as a result of the ASP.
Instead, they observed that both Uhuru and ICC Chief Prosecutor Fatou Bensouda ignored their request on July 3 for any observations on the commencement of trial by October 1. “The chamber takes note that no such notice was filed,” the judges noted.
The original Rule 134 says any side may raise an issue on the conduct of proceedings but such issues must not be raised again during trial except with the permission of the court.
Consequently, the judges yesterday issued directions on the conduct of the trial without considering the ASP amendments.
The judges said prior recorded evidence under Rule 68 had to be notified at least 21 days before the witness is due to appear. The rule has since been amended to cover evidence of dead or disappeared witnesses.
The prosecution, defence and victims have each been given four hours to make their opening statements on February 5 when the case starts.The use of any audiovisual aids has to be disclosed before January 31.
Charges will be read out to Uhuru “for the purpose of fulfilling the requirement of Article 64(8) of the statute.” Uhuru is expected to file that he has read and understood the charges by January 31.
The judges said the prosecution will be granted four hours to interview each of its 32 witnesses against Uhuru. In total, the prosecution has got 320 hours to present its evidence. By December 16, the prosecution must provide the court with the list of its 10 first witnesses.
A week before the trial starts, the prosecutor must file an updated list of witnesses indicating the relevance of their testimonies.
The judges said they will endeavour to conduct most of the trial in public. “Protective measures shall be considered to be exception to the principle,” they said.
Yesterday Bensouda applied to the court to compel the government to help her summon seven ‘recalcitrant’, or stubborn, witnesses whom she considers to be crucial in the case.
Meanwhile, journalist Walter Barasa’s lawyer has demanded that Bensouda and ICC Registrar Herman von Hebel publicly apologize for contempt of court.
Kibe Muigai has written a four page letter criticising them for saying at the ICC that the Kenyan government should have arrested and handed over Barasa.
“These public comments are sub judice which is a form of contempt of court and thus constitute the offences against administration of justice under the Penal Code Cap 63,” he said. He warned that Barasa’s extradition case will not be “as quick as the preparation of instant coffee.”
Kibe said the Kenyan courts “are under no divine duty or absolute legal obligation” to surrender Barasa to the ICC.He said Barasa would not be handed over as easily as the Ocampo Six. “We guarantee you that there shall be no repeat of such cheap justice in Barasa’s case,” he said.
“Not every Kenyan is a comprador or for that matter awed by the phoney powers of the ICC against second class citizens of the world that African people have been projected by the practice and actions of the ICC,” Kibe said.
If Bensouda and Hebel do not apologize, Muigai says Barasa will seek an order to suspend cooperation between Kenya and ICC.
The lawyer asked Chief Justice Willy Mutunga to safeguard the rights of Barasa by protesting to the ICC about the comments of the two officials.