Muthaura wants September ICC trial

Former head of civil service Francis Muthaura wants his trial for charges against humanity at the International Criminal Court to start in September.

By stating his case, Mr Muthaura is reading from a different script from the other three accused who are in favour of delayed trials.

He was present at The Hague as his lawyer Karim Khan accused the prosecution of not been prepared for the trial.

“The main question is if the prosecution is ready for trial. Our position is that we want a trial as soon as possible. Mr Muthaura is 65 and he has had to step down from his public duties and would like to remove the stain that has clouded his reputation.

"It should be within the wit and ability of the prosecution to make full disclosure within two months. This case did not start today,” Mr Khan said.

Deputy Prime Minister Uhuru Kenyatta’s lawyer Steven Kay appeared to side with the accused in the first case – Eldoret North MP William Ruto and radio presenter Joshua Sang – who want a 2013 trial date. Mr Kay told the Trial Chamber that his side will only be ready after full disclosure has been made by the prosecution.

He added that in order for the case to have a “logical matrix”, it was important that the case against Mr Ruto and Mr Sang goes first since the “issues being addressed happened first".

“Since prosecution will be ready at the end of the year, we want a case that they are fully prepared for as this would affect our preparation. We need enough time to prepare. We haven’t seen it (disclosure) and therefore we cannot say how much time we need,” Mr Kay said.

Very ambitious

The prosecution said that in order for it to be ready they have to deal with disclosure and also the issues of witness protection. The prosecution also said that the date of the trial in the case against Mr Muthaura and Mr Kenyatta should be sychronised with that of Mr Ruto and Mr Sang.

“Setting the trial date at the end of this year would be very ambitious because of issues relating to disclosure and also issues relating to witness protection. This was the practice that had been adopted by the pre-trial chamber.

"Security reasons is key. We want to avoid a situation where a particular case is seen to move faster than the other given the realities in Kenya,” the prosecution said.

The prosecution said that disclosure will be on a “rolling basis putting in cognisance the protection of witnesses".

It, however, added that there were at least 30 items collected since the charges were confirmed in January that could be disclosed immediately.

“We also have 680 materials that need redactions but cannot be disclosed until the disclosure protocol is agreed on by the parties, approved by the chamber and set up. This material involves 2,290 pages and relating to seven witnesses,” the prosecution said.

The prosecution added that there were 560 items that are currently being reviewed and are “mostly open source materials that include 2,200 pages and 26 audio files".

“We will continue to review all material and ensure that all material has been disclosed. We intend to call some witnesses but who we currently have security issues and this must be resolved first. We have asked a number of state parties to assist us with information and some have responded. We will be calling between 25 to 35 witnesses,” the prosecution said.

Recipe for disaster

The prosecution came under fire from the defence lawyers who said that the rate at which the disclosure was been done and the time that the prosecution was suggesting would disadvantage them. Mr Khan said that the suggestion to sychronise the two cases was “aimed at delaying the case".

“We have not received a scrap of evidence from the opposite side for more than nine months. This is a remarkable turn of events. This is a free standing case and should not be reliant to the case one. The defence is not opposed to rolling but this should not be more than two months,” Mr Khan said.

Mr Kay told the judges that the proposal to have witnesses identity revealed only 60 days to the start of their testimonies was “a recipe for disaster".

Mr Kay said that the defence has already raised questions over the integrity of some of the prosecution witnesses and needed enough time to investigate those identified during the trial.

“Identity of witnesses is very important. Over who they are and whether their story is truthful. During the confirmation of charges hearings we had only 15 days to do our work and we were hindered from investigating the witnesses due to the delay of disclosure. Last minute disclosure is not helpful at all,” Mr kay said.

The prosecution also revealed that it was planning to make an application that would allow the judges to make changes to the mode of liability. It clarified that it will not be asking for the reclassification of any facts or alteration of the charges.

“What we are suggesting is that based on the factual record before the chamber, there is a possibility that the chamber may decide to re-characterise the facts. Mode of liability may fall in more than one legal characterisation,” the prosecution said.