, NAIROBI, Kenya, Aug 26 – The International Criminal Court (ICC) plenary has slammed the Prosecution over last minute changes to its position over the venue of the trial against Deputy President William Ruto and former radio presenter Joshua arap Sang.
In the full written ruling released on Monday, the plenary disclosed that the Prosecution shifted from its earlier position that was in favour of trials being heard in Kenya or Tanzania, a day before the plenary sat to determine the matter.
“This submission remained on the record of this court until the close of business on 10 July, 2013 being the eve of the plenary. But, by the morning of the plenary the judges’ bundles of documents for the plenary had been updated with a new filing by the Prosecution. In the new filing, the Prosecution now changed their position, registering unequivocal opposition to conducting any part of the hearing in Kenya,” the plenary asserted.
The plenary at the time had ICC Prosecutor Fatou Bensouda’s application filed on February 21 which indicated that she was not opposed to the trial against Ruto and Sang being held in Arusha or Nairobi.
In her application she had indicated that “one suggestion may be to hold portions of the trial in Kenya or Arusha, Tanzania.”
However, the prosecution surprised the plenary with a new application saying the trials should not be heard in Kenya or Tanzania and did not bother to communicate the new position to other parties of the cases as should be the norm.
The plenary said the new application had procedural errors including the late submission.
“A filing done so late would have left the defence practically without an opportunity to react to the new filing before the plenary scheduled to commence at 10am the next morning. Second, the deprivation of this opportunity to the defence is even more acute. This is because the registry’s dissemination of the filing through the usual court management-court records email communication system occurred only at 1.25pm on 11 July 2013. That is more than three hours after the commencement of the plenary,” the plenary explained.
It dismissed the prosecution’s move saying it was an unpalatable decision that should not have happened.
“It is a method with no legitimate place in any proceedings of an international criminal court of this calibre. In the circumstances, the late filing should not have been received into the proceedings of the plenary,” it argued.
Judge Eboe-Osuji who voted in support of Arusha, Nairobi venue also raised eyebrows over the timing of the prosecution’s changed filing and an open letter sent to the court by human rights activist Gladwell Otieno.
According to him it was a questionable coincidence that the prosecutor changed the position only after Otieno’s letter was sent to the court, which also did not follow the due process.
“A further difficulty with the timing of the prosecutor’s very late change of positions was its timing. It did not occur until the period following the open Letter. It is particularly noted that the author of the open letter had taken issue with ‘recent and potentially forthcoming decisions by the trial chamber’,” he noted.
He expressed concerns that Otieno’s letter seemed to be in recognition of Bensouda’s last minute change of position which was not made known to the defence teams who are parties to the case.
“The problem that the open letter poses for the plenary begins with the unity of the prosecution’s change of position with the position expressed by the author of the open letter,” he pointed out.