, NAIROBI, Kenya, Nov 11- The International Criminal Court (ICC) Appeals Chamber has directed the Pre-Trial Chamber to review its judgement rejecting the prosecution’s request to have defence counsel Essal Faal dropped from representing Ambassador Francis Muthaura.
During a ruling on Thursday evening, Appeals Chamber Judge Akua Kuenyehia asked the Pre-Trial Chamber to reconsider its decision to take into account concerns that Faal may have been aware of confidential information.
“The Pre-Trial Chamber is directed to decide anew on the question of whether to invalidate the appointment of Faal in light of the present judgment. The Pre-Trial Chamber will first need to clarify whether there was any confidential information of which Faal was aware.”
She said the Pre-Trial Chamber did not use the correct legal standard to come up with its ruling and therefore failed to establish if Faal had accessed prosecution information regarded as confidential.
“The Appeals Chamber recalls the ambiguity of the impugned decision as to whether or not Faal had knowledge of any confidential information. In case of an affirmative answer, it will need to determine whether it is nevertheless in the interests of justice that Faal should be part of the defence,” she asserted.
The presiding judge however rejected a plea by the prosecutor that Faal should not join the defence by the mere fact that he had association with the prosecution before as she explained that was not reason enough to ask him to be stopped from working for the defence.
“Prior association with the Office of The Prosecutor (OTP) does not, per se, disqualify a former OTP staff member from working for the defence. The fact that a case was already open by the time that counsel left the employ of the OTP would not, without more, disqualify counsel from acting for the defence in that case,” she explained.
Judge Kuenyehia said the prosecution must prove conflict of interest but not use his association with the prosecution to have him dropped from the defence side.
ICC prosecutor Moreno Ocampo had appealed after the Pre-Trial chamber rejected his application to have Faal dropped from the defence on claims that he had accessed vital confidential information when he served in the prosecution office.
The Pre-Trial Chamber as directed by the Appeals Chamber will review if indeed Faal had accessed confidential prosecution information as alleged by the prosecutor.