A glimpse of how the cases against the six post-election violence suspects will be handled emerged on Monday during a session to decide how the prosecutor will share evidence with the defence.
International Criminal Court Prosecutor Luis Moreno-Ocampo said he will call 20 witnesses, 10 in each of the two cases.
He will also rely on 7,800 documents to build the cases against Deputy PM Uhuru Kenyatta, Civil Service boss Francis Muthaura, Postmaster-General Hussein Ali, MPs William Ruto and Henry Kosgey and radio presenter Joshua Sang.
Defence lawyers, on the other hand, said they will await the prosecutor’s evidence before deciding on the type and number of witnesses to call.
It also emerged that police had given evidence exonerating Mr Kenyatta, Mr Muthaura and Mr Ali.
The government did not object to this evidence being shared with defence lawyers.
But in presentations before Judge Ekaterina Trendafilova, the prosecutor expressed his intention to redact (partially conceal) an estimated 19,000 pages of evidence.
This, however, depends on the verdict of the court. The defence raised concern over the matter and asked that redactions be made to the minimum possible.
The prosecution and defence were making submissions during a status conference at The Hague before Judge Trendafilova, who is to make a calendar of the disclosure of evidence process.
The session with lawyers for Mr Ruto, Mr Kosgey and Mr Sang started at 10.10am (Kenyan time), while the meeting with lawyers of Mr Kenyatta, Mr Muthaura and Maj-Gen Ali started at 12.30pm.
The prosecution said the disclosure of redacted documents was meant to protect the witnesses in the Kenyan post-election violence cases.
“We wish to bring to Madam President’s attention there is limited capacity to protect individuals under the circumstance that we are operating. What the prosecution means by that statement is we are operating in a situation where the suspects remain in position of power, where witnesses frequently disappear or become uncooperative,” Mr Moreno-Ocampo’s representative said.
The prosecution called for witness protection before disclosure of evidence could take place. In the case against Mr Ruto, Mr Kosgey and Mr Sang, the prosecution said it had identified 606 documents made up of 11,000 pages that may have to be edited before they can be given to the defence.
In the case against Mr Kenyatta, Mr Muthaura and Mr Ali, the prosecution said that it had 542 documents comprising 9,397 pages that need editing before allowing the defence access.
In response, Mr David Hooper for Mr Ruto asked the Pre-Trial Chamber to ensure that the “redactions are kept to the minimum”.
He said while the defence was not opposed to redaction “there is nothing at the moment that prevents maximum disclosure and in due course if the protective measures are in place then the redactions can be lifted.”
Mr Kosgey’s lawyer George Oraro said: “We shall investigate and consider how many witness we can summon. The only proposition we can make for the moment is that — as the prosecution has indicated to call witnesses — we shall definitely call witnesses in rebuttal as it regards our client.”
Mr Sang, through lawyer Katwa Kigen, said they might call at least 15 witnesses.
In the second hearing, lawyers took the prosecution to task over claims that the continued stay in office of Mr Kenyatta, Mr Muthaura and Mr Ali was injurious to the witness.
They also cautioned against relying on the media while making decisions or submission before the court.
“Stories are made in the Kenyan media that are not based on facts and we had to deal with one such story last week.
“The court should be mindful of media manipulation,” Mr Steven Kay for Mr Kenyatta said.
In an application last week that the admissibility challenge launched by the Kenyan government should be handled before the disclosure, Mr Moreno-Ocampo last week attached two newspaper clippings to demonstrate to the judges the “security concerns” facing the witnesses in an application urging the court to hear the admissibility challenge by the government before the disclosure.
Lawyer Karim Khan for Mr Muthaura accused the prosecutor of “maligning and putting a cloud of innuendo on the proceedings” by making statements on the suspects holding public service positions.
Lawyer Evans Monari representing Maj-Gen Ali said the prosecutor appeared to be changing positions by saying that his witnesses would be interfered with, yet he had in the past said the witnesses were out of the country.
“He (the prosecutor) has said previously that he is receiving cooperation from the Kenyan government and he should not turn around at this time,” said Mr Monari.
Mr Kay asked the court to ensure the prosecution was diligent in investigating all cases, adding, he was concerned that the prosecutor had only one document after investigating the cases for 18 months.
Judge Trendafilova said the Chamber would uphold the rights of the suspects.