ICC Trial Chamber V(b) in the case against Kenyan President Uhuru Kenyatta has given the prosecution one week to file a notice on the way forward indicating either: “its withdrawal of the charges”; or “that the evidentiary basis has improved to a degree which would justify proceeding to trial.”
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In its ruling published today, the judges noted that: “although impeding access to evidence, including on the part of states parties, must not be permitted to be considered as a viable policy to frustrate prosecutions,” the concerns have to be context specific, and “balanced against the interest of justice, including the rights of the accused and the integrity of the proceedings.”
The chamber indicated that when they granted the last adjournment request in the case, they raised concerns about:
- “prosecution’s admission about the insufficiency of the then available evidence”
- “the speculative prospect of obtaining further relevant evidence to support the charges”
- “the timeliness and thoroughness of prosecution investigations”
According to them, these matters influenced their decision to reject the prosecution’s request for an indefinite adjournment of the proceedings, pending the Kenyan government’s fulfilment of an outstanding cooperation request for documents, which include Kenyatta’s financial records.
Noting that the prosecution had ample time to prepare the case against Kenyatta (five years), the judges indicated that the right of an accused to be “tried without undue delay” should not be compromised, especially in light of the questions raised about the diligence of the prosecution.
Moreover, although the prosecution suggested that Kenyatta may have interfered with the proceedings in his case, the chamber pointed out that the “prosecution has conceded that it has no evidence to support such an allegation.” Thus, given the forementioned inadequacies of the prosecution, the chamber felt that Kenyatta’s state duties did not warrant any further adjournment.
However, indicating the need to balance justice for the victims and justice for the accused, the judges were categorical: “refusal to grant a further adjournment in this case does not prejudice the right of the prosecution to bring new charges against the accused at a later date.”
In its ruling, the judges also rejected a request by the defence to terminate the case, indicating that the application lacked clarity and did not meet the necessary threshold. Moreover, the chamber stated that its decision to deny the prosecution’s adjournment request would likely mean an end to the proceedings.
Overall, the chamber sighted a lack of sufficient legal basis for the two requests from the prosecution and the defence: “while both parties have sought to rely upon the exceptionality or uniqueness of the present circumstances, the chamber considers that this does not obviate the need for grounding the requests on a clear legal basis.”
Lead image: Kenyan President Uhuru Kenyatta and ICC Chief Prosecutor Fatou Bensouda (Photo: ICC-CPI/Flickr)
Editorial note: some sections of this report were copy-edited on 4 December 2014.