Court/Tribunal: International Criminal Court

Decision Title: Decision on defense application pursuant to Article 64(4) and related requests

Chamber: Trial Chamber V

Case Name: The Prosecutor v. Uhuru Muigai Kenyatta

Date: 26 April 2013

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Decision Background: On 23 January 2012, the Pre-Trial Chamber II for the Court confirmed charges of crimes against humanity against Uhuru Kenyatta. On 9 July 2012, the Trial Chamber set the trial commencement date at 11 April 2013. On 5 February 2013, the defense for Mr. Kenyatta filed an application with the Chamber, challenging the validity of the confirmation of the charges against Kenyatta, and asked that the confirmation decision be referred back to the Pre-Trial Chamber for reconsideration. On 20 February 2013, the defense again submitted a request to the court, asking that the 11 April trial date be vacated. At a status hearing on 7 March 2013, in response to several claims raised by the defense, the court vacated the 11 April trial date, and provisionally re-set the date for trial at 9 July 2013. On 11 March 2013, the Prosecution announced that it was withdrawing charges against Francis Kirimi Muthaura, who had been charged as a co-conspirator with Kenyatta.

Pursuant to the latest developments regarding the dismissal of the charges against Muthaura, on 28 March 2013, Kenyatta petitioned the court, asking that the Chamber terminate the proceedings against him, stay the proceedings, or remit the case back to the Pre-trial Chamber for reconsideration, pursuant to Article 64(4) of the Statute.

The Kenyatta defense advanced four grounds upon which he petitioned for the requested relief.

The defense first argued that the Prosecution committed grave error, and potentially acted in bad faith, when it neglected to disclose to the defense potentially exculpatory information. Namely, the defense pointed to the recant of Witness 4’s testimony, which had been used as evidence in the confirmation hearing. Witness 4 withdrew testimony regarding his presence at a meeting in 2007, at which he testified that Kenyatta had been in attendance. This meeting was important to the Prosecution case, as they argued that part of the conspiracy or plan to engage in post-election violence had been formulated at this meeting. The recantation of this testimony, however, was not disclosed to the defense until after the confirmation hearing. Likewise, the Prosecution failed to notice the inconsistencies in the testimony until late in the proceedings.

The defense argued that the non-disclosure constituted a serious “clear and systematic failure” by the Prosecution’s investigation, that fundamentally called into question the credibility and strength of the evidence used to confirm the charges against Kenyatta. The defense noted that the Pre-trial Chamber, in confirming the charges, relied heavily upon Witness 4’s testimony. The defense argued that the defects in the Prosecution’s investigatory practices and failure to turn over the relevant material to the defense, will have far-reaching and negative effects on the proceedings against Kenyatta and on the credibility of the court generally.

The second issue also related to the problems with Witness 4’s testimony. Namely, the defense pointed to the inconsistencies given by Witness 4, who first testified to the 2007 meeting, then recanted his testimony. The defense argues that the evidence given by Witness 4 was thus not substantial enough to hold up at the confirmation hearing, and that without the evidence of Witness 4’s testimony, the evidence against Kenyatta was insufficient such that the Pre-trial Chamber would not have confirmed the charges against him.

For the third alleged defect in the Prosecution’s case, the defense took issue with the Prosecution’s “protracted” investigation. Namely the defense argued that the even after the confirmation hearing, the Prosecution continued to engage in significant investigatory action, which resulted in the nature of the case against Kenyatta “fundamentally changing,” and thus leaving the defense with inadequate time to prepare in response to the Prosecution’s “shifting” case. The defense argued that the Prosecution had ample time to collect evidence and engage in investigation before the confirmation hearing, and the fact that it did not so do “with reasonable diligence” undermines the confirmation process. The defense argued that the Prosecution’s failures in this area violated the defendant’s rights under Article 67(2) of the Statute, and failed to comply with Court jurisprudence on the Prosecution’s investigative duties.

Finally, the defense argued that the dismissal of charges against Muthaura fundamentally changes or calls into question the case against Kenyatta. Namely, the defense argues that the dismissal of charges against Muthaura acts as an admission by the Prosecution of insufficient evidence of wrongdoing by Muthaura. Since Muthaura and Kenyatta were initially charged as co-conspirators to the same crimes, the admittance of insufficient evidence in Muthaura’s case necessarily also reveals an insufficiency of evidence to sustain the charges against Kenyatta, who was said to have acted in concert with Muthaura. In support of this argument, the defense again highlighted the problems with Witness 4’s testimony in establishing the factuality of the meeting at which the common plan was said to have formed.

In addition to the reliefs requested in the 28 March application to the court, the defense also asked in its most recent 64(4) Application that the Prosecution be reprimanded for its non-disclosure of Witness 4’s affidavit, in which the recantation was present, to the defense until significantly after the confirmation hearing. Although the Chamber reprimanded the defense for failing to formally list reprimand as a relief in its document, given the seriousness of the Prosecution’s alleged misconduct, the Chamber noted that it will entertain the arguments relating to reprimand.

Decision Review: The Chamber first reviewed the defense’s request for termination or an unconditional “stay” of the proceedings against him, in light of the issues raised. The Chamber first noted that, however the relief was characterized, it would result in a permanent cessation of the case against Kenyatta. As such, the Chamber decided to address termination or “unconditional stay” as one and the same.

A termination is usually argued for when the defense believes that for various reasons, a fair trial for the accused is impossible, at the present time or any time in the future. While the Chamber stated that the defense failed to specifically lay out the reasons for this relief (why the proceedings would be unfair), it gathered that it was based on the defense’s arguments of insufficient evidence. The Chamber noted that under Article 85(3), it has the power to terminate or stay proceedings where continuing with the case would cause a “grave and manifest miscarriage of justice” due to serious violations of the accused’s rights. Likewise, a Chamber need not find that the Prosecution acted in bad faith, only that the effects of certain actions violate the defense’s rights to such an extent that the essential conditions for a fair trial are permanently absent.

On the other hand, the Chamber noted that a conditional, rather than permanent, stay of proceedings is also an option, and most appropriate in situations where current defects to the defense’s rights exist, but may be remedied in the future. The court noted that not every violation of a defendant’s rights warrant a permanent stay or termination of the case: termination is an exceptional remedy of last resort, and often less severe remedies are sufficiently available to counteract the unfairness to a defendant, without cancelling the entire case.

The Chamber found that the Prosecution’s conduct in failing to disclose the information regarding Witness 4’s testimony to the defense until much after the confirmation hearing, created a “cause for serious concern,” and implicated both the integrity of the court proceedings, and Kenyatta’s rights as a defendant. However, the Chamber found that the problems caused by the Prosecution’s failures could be remedied at trial. Namely, the Prosecution would no longer be calling Witness 4, and the defense, in making its case, would be free to challenge the credibility and strength of the Prosecution’s evidence, particularly in light of the lack of Witness 4’s testimony. Furthermore, the Chamber did not find evidence of deliberate bad faith on the Prosecution’s part. The Chamber thus found that a stay or termination of proceedings, in this instance, would be disproportionate to the harm done, especially in light of the opportunities the defense will have to address the problems with the Prosecution’s case at trial.

Regarding the defense’s request to have the case referred back to the Pre-trial Chamber, the court noted that the Statute gives the Pre-trial Chamber jurisdiction over “preliminary issues” in a case. To refer an issue back to the Pre-trial Chamber, the Trial Chamber must be satisfied that the issue is a preliminary issue, and that referral is “necessary” for the “effective and fair functioning” of the Chamber. The validity of the confirmation hearing as a “preliminary issue” was not contested by the parties. The Chamber thus had to consider whether referral was necessary for the fair functioning of the trial, which necessitated looking at the merit’s of the defense’s arguments. The Chamber noted, however, that it would not go beyond a prima facie analysis of the defense’s claims. It will only refer the issue back to the Pre-trial Chamber if it is clearly self-evident that no reasonable Pre-trial Chamber could have come to the same conclusion it originally did, in light of the new or changed evidence.

The Chamber found that it is not necessary to remand the case back to the Pre-trial Chamber. The Trial Chamber found that issues with the case came to a head while the case was under the Trial Chamber’s competence; as such, the Trial Chamber found that it would be competent to review and resolve any issues with the proceedings.  The Chamber found, however, that it is not within its competence to reconsider the evidence presented at the confirmation hearing, and redo the credibility assessments made by the Pre-trial Chamber. The Chamber reprimanded the defense for essentially attempting to use the Chamber, through a referral to the Pre-trial Chamber, as a defacto appeals court, to appeal the confirmation hearing decision, which it had previously attempted to do through the regular channels, and had failed. The Chamber did not agree with the defense that the issues with Witness 4 materially impacted the confirmation hearings.

In regards to the defense’ request for a reprimand, the Chamber noted that while not explicitly granted to it in the Statute, the Chamber does generally retain the right to issue a reprimand and a warning to the Prosecution for a failure to identify and disclose potentially exculpatory information, or information that affects the credibility of the Prosecution’s evidence.  The Chamber also noted that the disclosure of potentially exculpatory information to the defense is a “fundamental aspect of the accused’s right to a fair trial.” The Chamber noted that it is clearly appropriate to issue such reprimands and warnings in cases where the Prosecution has clearly violated these obligations. Likewise, in certain situations, it can also be appropriate for the Chamber to order additional, more stringent sanctions, along with the reprimand.

The Chamber found that the most prudent remedy was a reprimand to the Prosecution. In reaching its decision, the Chamber took particular issue with the amount of evidence that the Prosecution gathered after the confirmation hearing, a point at which the vast majority of the investigation is supposed to be completed. Although the Prosecution is allowed to do some investigating after the hearing, if circumstances prior to the hearing made investigation in a given area difficult or impossible, this exception is not unlimited. The majority of the court found that the Prosecution should have and could have been more thorough in its pre-confirmation-hearing investigation, and the decision spent a significant amount of time chastising the Prosecution for its failure to act with reasonable diligence. The Chamber did, however, acknowledge the special difficulties presented to the Prosecution in conducting its investigation – namely, the unstable security situation in Kenya—and seemed to discount the Prosecution’s failure to act more quickly.

Along with the reprimand, the Chamber ordered the Prosecution to conduct a complete review of its case file, and certify to the court that it had done so, to ensure that no further violations of its disclosure obligations occur. It also ordered the Prosecution to make any necessary changes to its internal review system, as the Chamber found that it was deficiencies in the review system that lead to the oversights and non-disclosure of important information. Finally, due to the marge amount of investigation that the Prosecution engaged in after the confirmation hearing, the Chamber found that an appropriate remedy would be to allow the defense more time to conduct its own investigation and prepare for trial in light of the new evidence that was gathered after the confirmation hearing. While the Chamber typically finds three months as sufficient for additional time to prepare for trial, given the circumstances of the case, the Chamber will consult the defense regarding its needs to prepare for trial, before setting the new date, which tentatively remains at 9 July 2013.

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