Thursday, 15th September 2011
Deputy Prime Minister Uhuru Kenyatta has taken a bold and potentially risky move, which will see him cross-examined as a witness at the International Criminal Court next week.
For two days Uhuru will be cross-examined by the lawyers for the victims, representatives of the defence in the chamber, the Office of the Prosecutor, and the Pre-Trial Chamber II judges led by Justice Ekaterina Trendafilova. Uhuru, who doubles up as Finance minister, is among the six prominent Kenyans ICC prosecutor Luis Moreno-Ocampo wants charged with crimes against humanity.
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| Deputy Prime Minister Uhuru Kenyatta who will be at the the International Criminal Court next week for Confirmation of Charges Hearing [PHOTO-FILE/STANDARD] |
But he will be taking the witness box on Wednesday, September 28, and the following day.
He will take the stand at 18.30hrs -7.30pm local time- on September 28, for questioning by his lawyers and conclude the following day after cross-examination by the prosecution, according to a schedule the ICC released on Wednesday.
Lawyers The Standard talked to said although Uhuru’s move can be interpreted as an act of boldness, showing he has nothing to hide; the cross-examination can also put him in a potentially risky position.
Lawyer Peter Kaluma, argued confirmation hearing was not the right stage for a suspect to take the witness box, as he risks "exposing himself".
"It is not the time for this, he may shoot himself on the foot once he exposes himself to cross-examination, which is usually not controlled. He may expose himself to being confirmed. The best strategy is to say very little because the burden of proof lies with the prosecution. It is not the right move," warns Kaluma.
He added that ICC process was an internationally geared process where one should not play into the hands of the prosecution.
"It is not something I would advice. Once you take the witness stand, you are telling people you are ready for trial. You expose yourself to provocation by lawyers; (and) you have no control of questions. I would advise against it," he added.
"He should embrace possibility of the impression being created that he does not have evidence exonerating himself. His move may be opening him up to confirmation," argued lawyer Harrison Kinyanjui.
He added it would have been in Uhuru’s favour to bring independent witnesses, given that there were witnesses who allegedly gave testimony incriminating him.
Another lawyer familiar with ICC proceedings, speaking under guarantee of confidentiality, warned Uhuru’s move may not have been the best unless Moreno-Ocampo does not have compelling evidence against him.
ICC criminal process, Kinyanjui added, is different from the local criminal procedure, which calls for different approaches. Kinyanjui was also quick to point out there seems to be a determined approach by ICC to ensure there was a trial "whether single or the entire thread (of the six suspects)."
Change witnessesAccording to the timetable for the second batch of confirmation hearings, after that of Eldoret North MP William Ruto, Tinderet MP Henry Kosgey, and Kass FM’s head of operations Joshua arap Sang, Uhuru will give his personal testimony through the question-and-answer session for three-and-half hours.
Moreno-Ocampo wants the three taken to full trial to face charges of murder, forcible transfer of population, rape, persecution, and other inhumane acts, following the 2007-2008 post-election violence.
Apparently, Uhuru’s lawyers have opted to have the Finance minister make his own defence after the court allowed him to change witnesses in the light of new evidence Moreno-Ocampo disclosed.
The court, while granting this to Uhuru, also dismissed his request for postponement of the confirmation hearing by three months on the basis that the prosecutor had given them additional evidence too close to the hearing date.
Uhuru will, however, call one other witness after the court rejected an application for more.
Muthaura and Ali will each call two witnesses, as did Ruto and Sang in the first case whose confirmation of charges hearing concluded last week. Kosgey did not present any witnesses, but relied solely on his lawyers’ submissions.
The hearings for Uhuru, Muthaura and Ali case run from next Wednesday to October 5. The proceedings will open with introductory remarks by Judge Trendafilova, observations by the defence on procedural matters, and opening statement by the prosecutor, legal representative of victims, and the defence teams
The following day the Prosecutor will begin his nine-hour presentation of the evidence on crimes against humanity and the modes of liability for each suspect. Thereafter, the defence teams for the three will respond to the prosecution evidence, and present their witnesses.
Uhuru and Ali’s defence teams have indicated they intend to challenge jurisdiction and admissibility of the cases. But the defence for Muthaura intends to only challenge the jurisdiction in respect of the case against him.
Trendafilova has directed that any challenges by the defence teams to jurisdiction and admissibility be submitted in writing, not later than Monday.
Uhuru’s lawyers, Steven Kay and Gillian Higgins, have objected to granting the victims’ common legal representative access to their confidential lists of evidence. They argued there is no provision in the Rome Statute or Rules of Procedure and Evidence, where the defence is obliged to disclose information or evidence to the victims’ counsel.
Confidential SubmissionThe defence has expressed grave concerns regarding the possibility that persons unknown to them could have access to sensitive information concerning their witnesses. Some 233 anonymous victims have been permitted to participate in the proceedings.
Muthaura’s defence team has requested the Chamber to "sit only for a maximum of four hours per day, during court sessions", for reasons explained in a confidential submission.
In response, the judge observed the schedule for the hearing envisages no hearing days with sessions lasting more than a maximum of four-and-half hours, and a number of days with a lesser amount of scheduled session time.
"The Single Judge is convinced that as such, the schedule of the hearing accommodates to the extent possible the concerns of Mr Muthaura," states the court record.
"The Single Judge emphasises that the final schedule for the hearing is subject to change if developments in the proceedings necessitate it," states the court records, citing technical matters, such as shifting from public to closed or private sessions and calling witnesses.
The judge also ordered the registrar to reclassify some 35 items of evidence as "confidential". The decision was taken with respect to certain evidence Uhuru’s defence disclosed.
Trendafilova rejected Uhuru’s application to line up a third witness, but allowed him to change one of his witnesses.
Uhuru’s lawyers had made an application, arguing the disclosure on August 19 by the prosecution amounted to an alteration of the case and the need had arisen for them to change selection of witnesses.
To enable the prosecutor to prepare for hearing, the court asked Uhuru’s defence to submit by on Wednesday in confidential filing, information detailing the subject matter and the scope of the proposed testimony of each witness.
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