Ocampo’s tough choices on Kenya evidence

April 15, 2011 12:00 am

, NAIROBI, Kenya, Apr 15 – International Criminal Court Prosecutor Luis Moreno Ocampo will be required to disclose all evidence to the six Kenyan suspects, including any facts that could exonerate them.

An associate legal officer of the pre-trial division Silverstro Stazzone, says the prosecutor has the duty to investigate both incriminating and exonerating circumstances equally.

“In the context of the disclosure proceedings, Article 67(2) of the Statute provides that the prosecutor shall disclose to the defence all evidence that he believes shows or tends to show the innocence of the suspects or mitigate their guilt," he says in a video on the Kenyan situation.

He said the prosecutor must also disclose to the defence – by way of permitting inspection – any documents, photographs, books or tangible items that in his view are more broadly, material to the preparation of the defence.

"This evidence is not only to be disclosed to the defence but also be made available to the Chamber," he said.

Already, Mr Ocampo has challenged a directive that requires him to disclose evidence to the six suspects.

On Thursday, Mr Ocampo applied for leave to appeal against the decision to disclose evidence to Deputy Prime Minister Uhuru Kenyatta,  Head of Civil Service Francis Muthaura and former police chief Hussein Ali.  Others are Tinderet MP Henry Kosgey, William Ruto of Eldoret North and radio presenter Joshua arap Sang.

Mr Ocampo is asking the court to reconsider the decision by presiding judge Ekaterina Trendafilova who directed him to give his evidence to the defendants.  He argues such move would expose the identities of his witnesses.

He also says before he is asked to disclose the evidence, the court should first dispose of an application by the Government of Kenya that is challenging the admissibility of the case before ICC.

The prosecutor quoted newspapers reports on the homecoming of Mr Kenyatta and Mr Ruto saying the message they passed during the prayers maybe construed as threats to witnesses.

A senior legal adviser at the Pre-Trial Chamber Gilbert Bitti says now that initial appearance has taken place, preparation of proceedings has started culminating in confirmation of charges hearing.

"The purpose of the confirmation of charges hearing is to exercise a check on what the prosecutor has collected and the strength of his case.  This is not a trial.  Witnesses will not appear, will not testify, be examined or be cross-examined."

He said after the confirmation of charges hearing, the Chamber would have to issue its decision within 60 days.  "The decision may be to decline to confirm charges.  The Chamber could also confirm all charges."

He said at that stage, the Prosecutor can be asked to supply more evidence, or amend documents contained in the charges or modify the charges.

The Kenyan Government has challenged the admissibility of the cases and the Chamber has asked for submissions from the prosecutor, defence and victims by April 28, according to court officials.

A status hearing is due on April 18 while hearings of confirmation charges will take place on September 1 and 21.

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