ICC releases evidence on Uhuru,Ruto cases

By Wahome Thuku

NAIROBI; KENYA: The Hague Prosecutor is seeking a minimum of 1,400 hours for her witnesses to testify and be grilled by the defence side on the Kenyan cases, which begin on April 10, and 11. 

This means, at the rate of four-hour sittings by The Hague court, and only on weekdays, the witness stage in the cases involving Jubilee leaders Uhuru Kenyatta and William Ruto could take a year or 350 days.

But this excludes weekends, court vacations such as winter, international and local holidays in The Netherlands, as well as other interruptions of hearing in court such as those forced by submissions, applications, verifications and other backroom business.

These hours exclude the time the defence itself will seek for its own witnesses to counter what the prosecution will charge, as well time allocated to any other witnesses called by both the Chamber and the representatives of the victims in the two Kenyan cases.

There could be further delay because the two sets of cases start on alternate days, if the Judges hear them on interchanging weeks because they are being heard by the same bench; Trial Chamber V.

What complicates the cases touching on Uhuru, who is the Jubilee Presidential candidate and Ruto, who is his running mate, is the fact that whether in the run-off stage, or in victory at whatever stage of the election, they would be required to be physically present in the Maanweg Street address at The Hague.

Furthermore, except for Kass FM’s Head of Operations Joshua Arap Sang, who sought ICC’s legal aid, this would mean that former Head of Civil Service Francis Muthaura, Ruto and Uhuru would have to meet their expenses for the duration of the case, even if it takes three years as some of those already heard by the court have. This would also include legal and upkeep fees for their lawyers, with each one expected to have a minimum of seven and also a retinue of researchers and clerical staff.

ROUGH CALCULATION

A rough calculation shows the trials, in which the ICC prosecutor alone seeks to present 77 witnesses, who all must be taken through evidence and then questioned by defence, and may be even the Judges if they want clarification, could go on for a cumulative period of more than three years. This however would be possible only if everything fits into timelines estimated by the ICC prosecution.

This is also only feasible if the two cases are heard on daily basis, something that has not happened in all the cases that the ICC is dealing with.

The matter is made more complicated by the fact that the two cases would be heard by the same bench of Judges Kuniko Ozaki, Christine Van den Wyngaert, and Chile EboeOsuji, who are also presiding over other trials.

Even going by precedence, the two trials already concluded by the ICC have taken three years each.

Uhuru is charged with Muthaura in the second case, while Ruto is charged in the first case with Sang. They all face charges of crimes against humanity arising from the 2007-2008 post-election violence, and last week, ICC Prosecutor Fatou Bensouda said she had secured sufficient evidence to sustain murder charges against Uhuru and Ruto.

In releasing the timelines, the Prosecutor listed the requisite trial documents she has shared with the attorney of the accused, including the list of her witnesses, summary of their evidence, the number of items she will be using to support her case, and the redacted evidence she does not want to divulged at this stage.

According to documents filed in the Trial Chamber by Bensouda and her office on January 9, she has lined up 77 witnesses for the two cases, all of whom are estimated to take a total of 1,398 hours.

In the Ruto/Sang trial the prosecution intends to call 43 witnesses. Bensouda estimates that the 43 will take approximately 826 hours in the courtroom. The prosecution would take 413 hours leading them through their evidence while it’s estimated that the defence would take equal time of 413 hours cross examining them.

CROSS-EXAMINATION

“The 826-hour estimate does not include time that the Chamber may grant to the Office of Public Counsel for Victims or the common legal representative to question Prosecution witnesses, or time that the Chamber may use to question witnesses,” Bensuoda says.

Likewise, this does not include the witnesses to be called by the defence, who could be either less or more.

In the Uhuru/Muthaura trial the prosecution hopes to call 34 witnesses. They are estimated to take a total of 572 hours in their main evidence and in cross-examination by the defence counsel. Some 31 witnesses will testify on the facts of the PEV and three will be expert witnesses.

Again this does not include the time that the lawyers for the victims will take and also does not include any witnesses that Uhuru or Muthaura or both, will call.

A single-day-session in the Trial Chambers starts at 9am and ends at 1.30pm, which is only four hours of proceedings per day and does not include weekends. This means that even if the Ruto and Sang case was to be heard on a daily basis, which is a practical impossibility, the prosecution witnesses alone will take 207 days which is more than six months. The prosecution witnesses in the Uhuru/Muthaura case will take 143 hours (about five months)

Assuming that the defence teams in the two cases were to call equal number of witnesses, the time will double to a total of two years for the two cases.

Yet these schedules do not cater for time that will be taken in making and dealing with applications in court, paper work, submissions and other forms of proceedings as well as adjournments that the parties may make. Neither does it include the court vacations when no proceedings go on at the ICC or any other breaks.

The time could be lengthened by any appeals that the parties may file along the way. Since it was started in 2002, the ICC has heard only two cases through trial to full conclusion.

The trial of former DRC military leaders Thomas Lubanga started on January 26, 2009 and was concluded on March 12, last year when he was convicted for war crimes. In this case the prosecution called 36 witnesses, the defence 19 and seven other witnesses called by victims’ lawyer and Trial Chamber.

That of former Congolese militia leader Mathieu Ngudjolo Chui started on November 24, 2009 and he was concluded on December 18, last year when he was acquitted of charges of crimes against humanity.

The fact that the trials will start a day apart indicates that the Chamber intends to conduct them concurrently. Muthaura has previously told the court that he would like to have the case against him heard expeditiously to enable him carry on with his life.

EVENTS

During the status conference mid-last year the defence lawyers raised questions regarding which of the two cases should be heard first and which one should be second.

The lawyers suggested that the court should hear the Ruto case first since it’s based on the facts that led to the events that gave rise to the changes against Uhuru and Muthaura.

That way the judges would easily understand the chronological events of the post-election violence and the genesis of the alleged crimes.

Ironically both Uhuru and Ruto are banking on the fact that the cases will be heard by one Chamber, as a way to enable them run the country, should they be elected in March.