NAIROBI, Kenya, Feb 26 – The trial of four Kenyans facing charges at the International Criminal Court (ICC) may not start any time soon, after Prosecutor Fatou Bensouda indicated she does not object to the trials starting in August instead of April.
Bensouda agrees the trials can be moved forward another six months to give the defence teams enough time to prepare as they requested during the status conference.
“The prosecution suggests that if the 11 April 2013 trial date is to be vacated, it would be appropriate for the chamber to fix a new schedule for the start of the trial. An August 2013 start date would therefore provide the defence with several months after receiving the delayed disclosure witnesses’ identities and unredacted materials,” she suggested.
The prosecutor agreed that the defence will require ample time to acquaint themselves with evidence from her office and also after revelation of remaining undisclosed witnesses.
Bensouda further informed the defence that the prosecution was ready to reveal the remaining undisclosed witnesses once security measures are in place.
“The prosecution also acknowledges that it is appropriate for the defence to have a reasonable period of time after the relevant identities have been disclosed and the corresponding redactions to the witness materials and the pre-trial brief have been lifted, to analyse the prosecution’s evidence before the witnesses testify,” she asserted.
The prosecutor further explained that in view of the ‘logistical constraints’ the court was facing in securing two courtrooms to have the two Kenyan cases heard concurrently, it was sensible to move the trial date from April to August.
She also said more time will be important to ensure security of undisclosed witnesses is well taken care of before they are exposed to the accused persons.
Bensouda maintained that the prosecution had not changed the focus of the case and that disclosure of witnesses was within the set deadlines.
“There has been no factual shift in the prosecution’s case. The facts alleged in the prosecution’s pre-trial brief fall within the four corners of the charges confirmed by the pre-trial chamber and contained in the updated document containing the charges,” she explained.
She explained that during the confirmation of charges hearings, the prosecution only relied on summarised evidence.
“The prosecution submits that it is self-evident that it would offer more evidence at trial than at the confirmation stage, when it needed only surpass the substantial grounds threshold and was entitled to rely upon summary evidence.”
Bensouda added that her office had also alerted the defence teams that evidentiary presentations would be more at the trial stage than the evidence released at the confirmation stage.
She said the prosecution intended to call between 25 to 35 witnesses. The prosecution’s trial witness list, which contains 33 names, falls within that range. In these circumstances, the defence cannot claim to be unfairly surprised by the addition of evidence.
During the status conference on February 14, the defence teams of Deputy Prime Minister Uhuru Kenyatta, former head of Civil Service Francis Muthaura, ex-Eldoret North MP William Ruto and former radio personality Joshua arap Sang alleged that the prosecution had changed the focus of the case, dropped key witnesses and introduced a huge percentage of new evidence.
Kenyatta and Muthaura made applications asking the trial chamber to refer their case back to the pre-trial chamber since evidence that led to the confirmation of their case had been dropped.
They also argued that key witness No.4 had been dropped from the list of prosecution witnesses.
The trial chamber is yet to rule on their application.