Accused demand Ocampo evidence before trial

The four Kenyans facing crimes against humanity charges at the International Criminal Court (ICC) are demanding that the prosecution discloses all evidence and witnesses before the trial.

On the other hand, the prosecution insists that disclosure will only be possible when the protection of all its witnesses is guaranteed.

“The start date of the trial is dependent in part on the Court’s ability to protect witnesses as well as cooperation with the Court’s processes by the accused and the Government of Kenya,” Prosecutor Luis Moreno-Ocampo told the Trial Chamber on Monday.

The accused have argued, in separate submissions that they cannot adequately prepare for the trial unless the prosecution has fully made its disclosure including new evidence that it may introduce and the number and identities of witnesses that it will call.

“The Defence submits that the Prosecution be ordered to provide full un-redacted disclosure within strict deadlines. The ability of the Defence to be ready for trial is very largely dependent upon the Prosecution completing its disclosure obligations,” former head of Civil Service Francis Muthaura told the court in sentiments shared by the other suspects in their submissions.

Other than disclosure, the accused have also made individual requests on how they want their trials conducted. Deputy Prime Minister Uhuru Kenyatta and Mr Muthaura told the judges on Monday that they would prefer the court to sit in Kenya or Arusha and also want “suspicious” prosecution witnesses investigated first.

Mr Kenyatta argues that his trial should be held in Kenya “for reasons of judicial economy and to ensure that the judicial process takes place within the territory affected”.

Mr Muthaura justifies his request saying: “Any trial process significantly disrupts the life of an accused person and that such a process, with the stresses attendant to it, can have a detrimental effect on the health of an accused.”

On their part, Eldoret North MP William Ruto and radio presenter Joshua Sang want the judges to set the trial date after the 2013 General Election. Mr Ruto argues that the trial may disrupt his presidential bid while Mr Sang says that some of his key witnesses may be involved in the elections.

“It is to be stressed that it (election) provides an important and further opportunity for Mr Ruto to advance the process of reconciliation in that country and to help ensure the pacific nature of the election,” his lawyers told the judges.

The various requests are contained in submissions made on Monday ahead of the June 11 and 12 status conferences where the Trial Chamber V is expected to set the dates when the four will answers to their charges in regard to the 2007/2008 post-election violence.

Judges Kuniko Ozaki (Presiding), Christine Van den Wyngaert and Chile Eboe-Osujihe will go through the written submission by the defence, prosecution and victims’ legal representatives ahead of the status conferences.

Among the issues raised by the participants is the issue of languages to be used. The prosecution says that English and Kiswahili will be used but does not rule out the need for “Kikuyu and Kalenjin translators”.

The accused have told the judges that they may require Kikuyu, Luo, Kalenjin, Kamba, Kiisi, and Luhya translators for their witnesses.

While the prosecution says that it does not see the need for the judges to make a visit to Kenya, the suspects argue that this will assist the Trial Chamber judges to decide upon important issues in the case. However, the accused have presented varying preferences on the timing of the proposed visits.

Mr Ruto says that there should be two – one before the prosecution case and one on conclusion of the defence case. He however argues that, if only one site visit is possible then it should take place at the conclusion of the defence case.

Mr Sang argues that the site visit should take place after the prosecution argues its case but before the defence makes its submissions. Mr Muthaura has proposed that such site visit take place after opening statements and prior to the commencement of the testimony of the prosecution’s first witness.