Yesterday, the Defence for Kenyan Deputy Prime Minister Uhuru Kenyatta submitted an application to Trial Chamber V (Chamber) of the International Criminal Court requesting that the Decision on the Confirmation of Charges (Confirmation Decision) be referred back to the Pre-Trial Chamber (PTC) for reconsideration. Mr Kenyatta submitted that reconsideration of the Confirmation Decision was necessary “in order to avoid a serious miscarriage of justice.”
Mr Kenyatta stated that “[e]ssential facts underpinning the Confirmation Decision by the PTC are no longer relied upon by the Prosecution as evidence in support of the charges, as they are now known to have been falsely alleged by a witness relied upon for those proceedings.” The application explained that central evidence relied upon by the PTC to support the Confirmation Decision, namely that of Prosecution Witness OTP-4, has been shown to be untrue, and that the Prosecution no longer seek to rely on the witness at trial. Mr Kenyatta submits that the “Confirmation Decision is based on an inherently flawed analysis of the evidence, and is fundamentally unfair to the Defence. Had the PTC been aware of the true nature of OTP-4’s evidence at the time of its deliberations, the Defence submits that the PTC would not have confirmed the present case for trial.”
In a further submission, Mr Kenyatta argued that the PTC unfairly denied him access to exculpatory evidence, stating that “[t]he Confirmation Decision and the hearing on the confirmation of charges have been rendered unfair by reason of the Prosecution’s failure to draw the attention of the PTC to crucial evidence undermining its case, the failure of the Single Judge to properly satisfy herself as to the true nature of the OTP-4 Statement and her consequent authorisation of non-disclosure to the Defence of the same or a summary thereof.” The statement in question is said to have contained fundamental inconsistencies with respect to the evidence of OTP-4. The application criticises the Prosecution’s “abuse of the protective measures regime”, stating that it unfairly manipulated the redactions system “as a litigation strategy to increase artificially the strength of its case.” Mr Kenyatta also submitted that the proceedings following non-disclosure of the evidence related to OTP-4, which would include the September 2011 hearing on the confirmation of charges, “failed to comply with the requirements of adversarial proceedings and equality of arms” as a result of the Single Judge’s failure “to balance fairly the interests at stake”.
Unless the Chamber orders otherwise, the Prosecution and the defence team for Mr Kenyatta’s co-accused, Francis Muthaura, have 22 days to submit their responses.
The next hearing in the case is scheduled to take place on 14 February. The Chamber has scheduled a status conference to “discuss the conditions of the summonses to appear issued by the Pre-Trial Chamber, as well as to address any practical, financial and/or legal matters related to the attendance of the accused at trial, including the modalities of the accused’s stay on the territory of the Host State during the trial.” The Chamber has also ordered that both accused attend, “either in person or via video link.” The proceedings can streamed from here.