Ocampo wins one case, loses another

May 10, 2011 12:00 am

, NAIROBI, Kenya, May 10 – The International Criminal Court has partly agreed to extend time for Prosecutor Luis Moreno Ocampo to delay disclosing of evidence to Kenyan suspects.

The Court allowed the Prosecutor a delay of 10 days in the case against suspended Higher Education Minister William Ruto, Tinderet MP Henry Kosgey and radio presenter Joshua arap Sang but declined to grant similar extension in the case against the other three suspects.

"The single judge hereby grants the Prosecutor until Monday, 23 May 2011 to submit properly justified proposals for redactions, if any, with respect to the evidence that has been collected prior to 15 December 2010" the judge ruled.

The court however rejected in totality a request of time extension in regard to the case against Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura and former Police Commissioner Hussein Ali.

Mr Ocampo had last week applied to the court to grant him extension of time within which he should disclose his evidence against the suspects.

In rejecting the Prosecutor\’s request in relation to Mr Kenyatta, Mr Muthaura and Mr Ali\’s case, Judge Ekatirina Trendafilova said the Prosecutor didn\’t show good cause to warrant extension of time.

"The Prosecutor\’s Request cannot be granted to the extent that it advocates the non-binding nature of the dates indicated by the Prosecutor for his submission of proposals for redactions," the judge ruled.

The Prosecutor in his application had wanted the court to allow him to review the security situation in Kenya and reassess his evidence before he could disclose the evidence as directed by the court in the Disclosure Calendar.

The court had ordered Mr Ocampo to disclose as indicated below: June 3 for the evidence collected before December 15 2010 when the court issued summons against the Ocampo Six. Secondly, June 24 for the evidence collected between December 15 2010 and March 31 2011; and July 29 2011 for the evidence collected after 31 March 2011.

The Prosecutor had suggested that he be allowed to disclose the evidence in two stages.

"The [Prosecutor] undertakes to submit proposals for redactions in two stages, the first group on June 24 and the second group on July 29," Mr Ocampo said in his request.

In Messers Ruto\’s, Kosgey\’s and Sang\’s case the court said that 10 day extension of time will not prejudice the suspects since they will also have sufficient time to prepare their defence.

"The 21 days of extension requested by the Prosecutor are not necessary and that the Prosecutor will be able, by Monday 23 May 2011, to complete his work with respect to the redactions to be requested for evidence that has been in his domain for a protracted period of time – i.e. between 5 and 13 months as this evidence was collected since 31 March 2010 until 15 December 2010. The first deadline for the submission of properly justified proposals for redactions for the evidence collected by the Prosecutor before 15 December 2010 is thus postponed to Monday, 23 May 2011."

On April 20 Mr Ocampo lost a bid to block disclosure of evidence to the six Kenyan suspects pending the hearing and determination of a suit filed by the government challenging the admissibility of the cases.

Judge Trendafilova ruled that the Prosecutor\’s request did not have a legal basis in the applicable law. "As such, it must be rejected without further consideration."

She said that after the Kenyan government challenged the admissibility of the cases, the Prosecutor was only barred by the Rome Statute from carrying out further investigations but was not precluded from proceeding with the case.

"In particular, Article 19(7) of the Statute states that "[if] a challenge is made by a State […], the Prosecutor shall suspend the investigation until such time as the court makes a determination in accordance with Article 17."

She asserted that the Statute only made reference to the term \’investigation\’ in contrast to, for example, Article 16 of the Statute, which refers to both \’investigation\’ and \’prosecution.\’

"In addition, an \’investigation\’ should be distinguished from \’judicial proceedings\’: an investigation is not a judicial proceeding but an inquiry conducted by the Prosecutor into the commission of a crime with a view to bringing to justice those deemed responsible."

She directed the Prosecutor to provide a document containing a detailed description of the charges together with a list of evidence, for the purposes of the confirmation hearing, no later than 30 days before the date of the commencement of such hearing.

"The Prosecutor is thus ordered to disclose to the Defence any evidence collected prior to 15 December 2010 on which he intends to rely for the purposes of the confirmation hearing and for which no redaction (partial concealment) is needed no later than Friday, 13 May 2011."

Mr Ocampo had wanted the court to first allow the government case to be concluded, arguing that it could be prejudicial to his witnesses.

"The security of the witnesses should not be affected without a final determination of the issues of admissibility. There is a significant risk in disclosing information that would identify witnesses before admissibility is finalised," the Prosecutor said in his plea.

He had asserted that the disclosure move would unduly expose the identities of his witnesses.

He said his main concerns on the security of witnesses was based on the public attention that the case had attracted in Kenya and events that signal that supporters of the suspects might attempt to retaliate against perceived witnesses.

He cited the homecoming reception given to Uhuru Kenyatta and William Ruto as a pointer to potential intimidation of witnesses.

"The concerns about the witnesses are based on the public attention that this case has attracted in Kenya and events that signal that supporters of the suspects might attempt to retaliate against perceived witnesses," Mr Ocampo added.

Mr Ocampo wanted the prosecution allowed to withhold the evidence until it took further steps to protect the witnesses and their families.

"In short, disclosure should be ordered after the issue of admissibility is decided. This course of action, would respect the right of a sovereign State to a fair consideration of its claims. It would respect the needs of the victims, whose identities should not be compromised in a case that could later be found to be inadmissible. It would respect the right of the Prosecution to complete its pre-confirmation investigations," he said.

A status conference took place on April 18 where the Prosecutor revealed he would rely on 20 witnesses and more than 7,000 documents in support of his case against Messrs Kenyatta, Ali, Muthaura, Kosgey, Ruto and Sang.

The confirmation of charges hearing is due to take place on September 1 and 21.

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