, NAIROBI, Kenya, Apr 20 – International Criminal Court Prosecutor Luis Moreno-Ocampo has 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 Ekaterina 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.”
Read the ruling here
She said Mr Ocampo was required to provide the defence with the names of witnesses whom he intends to call to testify as well as the copies of any prior statements made by them sufficiently in advance to enable the adequate preparation of the Defence.
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 Uhuru Kenyatta, Hussein Ali, Francis Muthaura, Henry Kosgey, William Ruto and Joshua arap Sang.
The confirmation of charges hearing is due to take place on September 1 and 21.
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