ICC judge withdraws from Kenya’s Hague cases

Wyngaert was replaced by Judge Robert Fremr who was previously assigned to the Trial Division 4/FILE

Wyngaert was replaced by Judge Robert Fremr who was previously assigned to the Trial Division 4/FILE

NAIROBI, Kenya, Apr 27 – Judge Christine van den Wyngaert on Saturday resigned from hearing the Kenyan cases at the International Criminal Court (ICC) after questioning the conduct of the prosecution in President Uhuru Kenyatta’s case.

In her opinion the prosecution failed to disclose to the Pre-Trial Chamber on the credibility of witness four and disclosing new evidence after confirmation stage.

“There are serious questions as to whether the prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation. I believe that the facts show that the prosecution had not complied with its obligations at the time when it sought confirmation and that it was still not even remotely ready when the proceedings before this Chamber started,” she stated.

She further agreed with Kenyatta’s argument that the prosecution introduced evidence and witnesses that had not been disclosed before.

“I stress the concerns expressed in the decision about the overwhelming number of post confirmation witnesses and the quantity of post-confirmation documentary evidence, as well as the very late disclosure of the latter.

Wyngaert observed that even though the prosecution faced challenges it has not justified how so many witnesses were interviewed after charges against Kenyatta were confirmed.

“The Prosecution offers no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation. The mere invocation by the Prosecution of generic problems with the security situation in Kenya, without explaining how this situation affected each of the individuals involved, does not adequately justify the extent and tardiness of the post-confirmation investigation,” she opined.

However in her concurrence with the other two judges, she explained that the hitches on the side of prosecution were not weighty enough to warrant a referral to the Pre Trial Chamber or withdrawal of charges against Kenyatta.

Wyngaert was replaced by Judge Robert Fremr who was previously assigned to the Trial Division 4.

The Kenyan cases now will be heard by Fremr, presiding Judge Kuniko Ozaki and Judge Chile Eboe-Osuji.

In a majority decision the Trial Chamber agreed that charges against Kenyatta will remain as confirmed for the trial set for July 9 this year.

The judges said it was not within the mandate of the Trial Chamber to determine the credibility of witnesses and their evidence.

“The Chamber is mindful that it should not place itself in the position of the Pre-Trial Chamber when it comes to the consideration of the credibility of witnesses and assessment of the evidence presented at the Confirmation Hearing,” the judges said.

The majority further ruled that it was not within the mandate of the Trial Chamber to challenge decisions of the Pre Trial Chamber but for the Appeal Chamber to make such a decision.

They also said that it was not within the Trial Chamber’s power to terminate the proceedings as requested by Kenyatta’s defence.

For that reason, the judges dismissed Kenyatta’s application to refer his charges back to the confirmation stage and also to stop the proceedings against him.

“The Chamber has no appellate jurisdiction over decisions of the Pre-Trial Chamber. Accordingly, the Chamber is not convinced that this issue provides a basis to terminate or stay the proceedings. Nor is it, in the view of the majority, necessary for the Chamber’s “fair and effective functioning” to refer this issue back to the Pre-Trial Chamber for reconsideration. To do so for this issue would effectively mean that the Chamber acts as an appellate body, which as considered above, is not permitted by the Statute,” the majority explained.

The judges however agreed that the defence required more time to prepare for the trials based on the fact that there were witnesses and evidence disclosed post confirmation.

However the judges said until it rules otherwise on the start of trials, the trial date for Kenyatta’s case would still remain on 9 July.

“The Chamber considers that it would be disproportionate to terminate or stay the proceedings as a result of the non-disclosure. Nor is it necessary to refer this issue to the Pre- Trial Chamber. Until the chamber has decided on the amount of additional time that the defence will be given, the current date for trial of 9 July 2013 will be retained,” the majority ruled.

JUDIE KABERIA

JUDIE KABERIA

Judie, a Special Projects Reporter started practicing journalism in 2003. She has worked in Kenya and Germany. Judie has scooped awards in Reproductive Health, Population, Gender and Development. She has participated in international conferences in Germany, Switzerland and Netherlands. Judie has written a booklet, 'Justice and Peace in the Kenyan Eye'. She has a soft spot for human rights, crime, peace and justice stories and she is now pursuing a Master's Degree at the University of Leicester (U.K).

  • wakim

    These cases were meant to achieve many things among them preventing the duo from ascending to power. How do you arrest and charge someone for murder where you cant find either the bloodstains or the body? ..only in Europe!

  • GITAUJIMMIE

    THIS CASE AND THAT ONE OF RUTO MUST BE DIMISSED BECAUSE IT WAS A POLITICAL MANOUVRE BY OBAMA AND SOME OF HIS FRIENDS IN THE WEST TO BAR PRESIDENT KENYATTA AND HIS DEPUTY FROM VYING FOR KENYA PRESIDENCY SO THAT THEY COULD INSTAL THEIR PUPPET KENYA OBAMA’ S LUO ‘COUSIN’ RAILA AMOLO ODINGA.

    IN VIEW OF THE FACT THAT THE WEST HAS BEEN BIASED AND DISCRIMINATORY IN THESE CASES BECAUSE OF WRONGLY TRYING TO PROSECUTE THE WRONG INNOCENT PERSONS (KENYATTA AND RUTO) INSTEAD OF OBAMA AND ODINGA WHO PLANNED AND EXECUTED THE KENYA 2007/8 GENOCIDE AND ETHNIC CLEANSING, UHURU AND RUTO SHOULD BE TRIED IN KENYA OR VIA VIDEO LINK AS THEY CAN BE KILLED BY THEIR ENEMIES IN THE HAGUE-WEST.

    I.C.C. SHOULD MAKE THAT ARRANGEMENT NOW.

    I.C.C. MUST NOW MOVE FAST TO HAUL OBAMA AND ODINGA TO FACE THE LAW FOR PLANNING AND EXECUTING THE KENYA 2007/8 GENOCIDE AND ETHNIC CLEANSING.

    IF I.C.C. DOES NOT PROSECUTE OBAMA AND ODINGA, IT WILL MEAN THAT THE COURT IS A WESTERN OUTFIT FOR INSTALLING WESTERN PUPPETS TO POWER AND THE REST OF THE WORLD SHOULD IMMEDIATELY ESTABLISH A PARALLEL INTERNATIONAL COURT WHICH WILL BE HANDLING CRUELTY AGAINST MANKIND.

    I.C.C. WAS MAINLY FORMED TO FIX BLACK PEOPLE AND SOME OTHER NATIONS WHO THE WEST DOES NOT LIKE.

    PROOF:

    GEORGE BUSH AND TONY BLAIR HAVE NOT BEEN PROSECUTED FOR DEATHS OF THOUSANDS OF PEOPLE WHO WERE KILLED IN IRAQ UNDER A FALSE PRETENCE THAT IRAQ HAD WEAPONS OF MASS DESTRUCTION.

    I.C.C. IS EXTREMELY DISCRIMINATORY.THE WORLD CANNOT UNDERSTAND WHY IT IS PURSUING INNOCENT KENYANS INSTEAD ASSAD OF SYRIA WHO IS BUTCHERING HIS DAY IN DAY OUR.

    IT IS IMPORTANT TO WARN AND ADVISE THE WEST TO SUPPORT KENYA GOVERNMENT LEADERS AS THEY ARE THEIR MOST IMPORTANT FRIENDLY PLAYERS IN THE FIGHT AGAINST TERRORISM.

    THEY HAVE BEEN SUPPORTING OWN ENEMIES, OBAMA AND ODONGA WHO ARE COMMUNISTS AND PROMOTERS OF TERRORISM:

    PROOF:

    THEY SIGNED A MEMORANDUM UNDERSTANDING WITH ISLAMIC TERRORISTS IN 2007 TO TURN KENYA INTO AN ISLAMIC SHARIA LAW STATE WHICH WILL URN AGAINST THE WEST.

    BY COPY OFTHIS COMMENT H.E. KENYATTA AND RUTO ARE WARNED TO AVOID POISONING BY EATING FOODS NOT COOKED BY THEIR WIVES.

    DO NOT ATTEND OBAMA’S DINNER INVITATION. SEND REPRESENTATIVES TO AVOID POISONING AND BEING TAKEN TO HAGUE.

    OBAMA IS YOUR ENEMY NO. 1. HE WANTED/WANTS HIS ‘COUSIN’ RAILA ODINGA TO BE PRESIDENT OF KENYA.

    N.B:

    BY COPY OF THIS COMMENT OUR SECURITY AGENCIES ARE REQUESTED GET FULL INFORMATION ON THE MATTERS I HAVE TOUCHED AND ACT SWIFTLY SO THAT WE ENSURE THAT JUSTICE IS DELIVERED.

    PLEASE CONTACT SHOULD YOU WANT CLARIFICATION, MORE INFORMATION ETC.

    LONG LIVE HER MAJESTY.

    DR. REV. JAMES K.N. GITAU
    PASTOR/EVANGELIST
    gitaujimmie@yahoo.co.uk
    0044 (0) 7711 936 139

    C.C.
    HER MAJESTY QUEEN ELIZABETH THE 2ND.
    RT. HON. DAVID CAMERON
    H.E.BARACK OBAMA
    I.C.C.
    H.E. UHURU KENYATTA
    H.E. WILLIAM RUTO
    MI5
    MI6
    CIA
    FBI
    MOSSAD
    NSIS

    • SalumG

      Gitau, you are not a reverend but a tribalism reverend, how come a reverend see those people died but only justice to Uhuruto?

      • http://twitter.com/MKyendo Musyoka wa Kyendo

        There is a question I have always asked: Will the cause of justice be served by charging UK, Ruto and company and leaving out Raila, Nyong’o and Orengo? These were the people who ignited the violence in kenya. And there is visual and audio evidence to support this allegation.

    • Alalo

      You so stupid. If the types of Kenyans we have in the Diaspora are full of shit like you, then am really scared.

  • CHRIS OJOW

    AND MORE WILL WITHDRAW FROM THE CASE.

  • http://www.facebook.com/profile.php?id=100000704738978 Anthony Wanguru Stevenson Ruor

    Whtat are the sources of this story, Judie Kaberia ?

  • TruthandFreedom

    The HAGUE is a joke!!! They refuse to take actions against any of the war criminals in the US!!! Hell Obama and Bush just got back from Africa, they were quaking in their boots!!! lol
    This HAGUE is bought and paid for!!!! They say they have warrants for the arrest of both Obama and Bush, but refuse to act!!!! These two have killed thousands through illegal wars and yet the HAGUE just looks the other way!!!!