, NAIROBI, Kenya, Dec 14 – The International Criminal Court’s Appeal Chamber on Friday dismissed an application by Prosecutor Fatou Bensouda to amend the charges facing Deputy President William Ruto and journalist Joshua arap Sang.
The prosecutor had wanted the charges facing the two to include crimes committed on the 30 and 31 of December 2007.
Ruto and Sang are currently facing trial on charges of crimes committed between January 1 and 4, 2008, when deadly violence hit parts of the country in the wake of a presidential vote dispute between the then incumbent president Mwai Kibaki and his challenger Raila Odinga.
Bensouda had moved to the appeals chamber to challenge a decision of Pre-Trial Chamber II, which rejected her request to amend the temporal scope of the charges.
In dismissing her appeal, the judges said they relied on Article 61(9) of the Rome Statute which bars the prosecutor from amending charges once a trial is underway.
Four out of the five judges on the Appeals Chamber therefore found that since Ruto and Sang’s trial commenced on September 10 with the first witness giving testimony on September 17, it could not grant the prosecution’s request.
“The Chamber notes that the request to amend the charges was filed before the commencement of trial.
Nevertheless the wording of Article 61(9) of the Statute indicates that not only the request to amend the charges has to be filed before the commencement of the trial, but also that the entire process of amending the charges must be completed by that time,” the decision reads in part.
The majority of the Chamber also agreed with the Pre-Trial Chamber finding that the Prosecution showed a, “lack of efficiency and due diligence” by applying to amend the charges six months after they were confirmed.
They went on to state that had the Prosecution been serious about amending the charges, it would have sought a delay in the commencement of trial.
“If she identifies a need to seek an amendment of the charges shortly before the scheduled start of a trial, she may ask for a postponement of the trial until the amendment process, including any potential appeal in that regard, is concluded,” they explained.
One Judge, Anita Usacka however, issued a dissenting opinion and was of the view that Article 61(9) only requires the Prosecution to make its request for an amendment to the charges before the commencement of the trial and it does not require that the entire process be concluded before then.
“If the first sentence of article 61 (9) of the Statute is read as requiring the amendment process to be fully concluded, the Prosecutor would be required to foresee how long the amendment process would take,” she defended her position.
Ruto and Sang’s trial kicked off in September but adjourned late November until January when the prosecution will be ready to present the next witness testifying against the Deputy President and former journalist.
The trial of President Uhuru Kenyatta, also facing crimes against humanity charges for allegedly planning and financing the post election violence, is scheduled to kick off on February 5.
Both the President, his Deputy and the former journalist deny orchestrating the violence that left some 1300 people dead and nearly half a million others displaced, in the country’s worst violence since independence in 1963.