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Time draws near for 2nd batch of ICC suspects

NAIROBI, Kenya Sep 14 – The International Criminal Court has directed three Kenyan suspects who are to appear for confirmation of charges hearings next week to submit written applications challenging the jurisdiction and admissibility of their cases by Monday.

Presiding Judge of Pre-Trial Chamber II Ekaterina Trendafilova said the applications which the three suspects intend to file will, however, not affect the scheduled hearings which kick off on September 21.

The defense teams of Deputy Prime Minister Uhuru Kenyatta, Civil Service Head Francis Muthaura and that of former Police Commissioner Hussein Ali have written to the court on their intention to challenge jurisdiction and admissibility of the charges they are facing at The Hague.

Kenyatta and Ali had indicated that they intend to challenge both jurisdiction and admissibility while Muthaura declared he will only challenge the jurisdiction of his case.

“The single judge considers it imperative that these applications, if any, are received before the start of the Hearing, by no later than Monday, 19 September 2011 at 1600hrs,” Justice Trendafilova ruled.

She added that “it will not be necessary that they [applications] are addressed orally at the courtroom sessions of the hearing” which implies that the admissibility challenges will not in any way affect the scheduled hearing.

The Kenyan government has previously lost a case challenging the admissibility of cases against the three suspects and their counterparts – legislators William Ruto (Eldoret) Henry Kosgey (Tinderet) and journalist Joshua arap Sang who all recently returned to the country on conclusion of a hearing for the confirmation of their charges.

The judge’s Wednesday ruling also termed as pre-mature an application by both Kenyatta and Ali who wanted to be allocated extra time during the confirmation of charges hearing to cross-examine all witnesses testifying against them.

“At this stage, the single judge considers this request as premature as it will depend wholly on whether the witness, called by one suspect, in his/her testimony will touch upon certain issues which concem or implicate the other suspect(s),” the ruling said noting that “additional time has therefore not been allotted in general to each defence team for the examination of each witness called by the other respective defence teams.”

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In declining Kenyatta and Ali’s request, the judge however warned the suspects that a schedule of the hearing issued to them earlier “is subject to change if developments in the proceedings necessitate it.”

Such changes usually arise from time that is needed for resolving technical matters, such as shifting from public to closed or private sessions and calling witnesses as was the case when three suspects in the first case appeared.

“Thus, the single judge expects the parties to be prepared at any time and to be flexible as well,” she ruled.

ICC prosecutor Luis Moreno Ocampo has named six Kenyans, including the three as possible masterminds of the post election violence of 2008 which claimed the lives of atleast 1,500 people and displaced half a million others.

In her ruling, Justice Trendafilova further warned the three suspects scheduled to appear in The Hague next week with their lawyers to avoid wasting time on unnecessary arguments during the proceedings.

“The single judge recalls the limited purpose of the hearing and reminds all parties and participants to avoid repetitive arguments and to confine themselves to what is strictly necessary so that the Chamber, which has carefully read all the material available, discharge its functions pursuant to article 61(7) of the Statute,” she warned.

She said she also expects the Prosecutor and the defence to organi se their arguments and presentation of evidence following the Draft Model Chart appended to the 6 April 2011 Decision starting with the contextual elements of crimes against humanity, the specific constituent elements of the crimes charged and finally the individual criminal responsibility of each suspect.

Parties intending to present audio or video material as part of their evidence have been ordered to liaise ahead of time with the Court Registry so that the proceedings can unfold smoothly.

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