THE trials of Uhuru Kenyatta and William Ruto at the Hague are likely to stretch into 2015, judging by the pre-trial brief of ICC Chief Prosecutor Fatou Bensouda filed on Wednesday.
The trial of Deputy Prime Minister Uhuru Kenyatta and former Civil Service boss Francis Muthaura for crimes related to post-election violence is due to start on April 11 while the trial of Eldoret North MP William Ruto and broadcaster Joshua arap Sang will start on April 10.
The second round of the presidential election where Uhuru and Ruto are standing on the Jubilee ticket is scheduled for April 10. In her pre-trial brief filed on Wednesday, ICC Chief Prosecutor Fatou Bensouda told the trial judges that she will need an estimated 826 hours to present her case against William Ruto and Sang and 572 hours to present evidence against Uhuru and Muthaura.
The court hours at the ICC run from 9.30am to 12.30pm and 2pm to 4pm, a total of five hours a day or 25 hours a week. In addition, defence lawyers will probably take the some amount of time to present their own witnesses.
That will come to at least 2,800 hours of time in court, that will take 112 weeks to dispose of, not counting public holidays or delays caused by sickness or legal challenges.
The cases are due to run concurrently so Uhuru and Ruto are likely to be tied up almost continuously in the Hague from April until late 2015, Bensouda told Trial Chamber V judges that she needs the time to present evidence, present witness testimonies and allow for possible cross-examination from the defence.
“The (time) 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,” Bensouda said.
According to the ICC calendar for 2013, the trials of the four Kenyans are scheduled for every day other than weekends, public holidays, and recess breaks of six weeks.
If Uhuru wins the March 4 election, he will become an absentee president, as the Rome Statute requires that suspects be present in court at all times.
Bensouda said that she will question 31 witnesses and three experts in her case against Uhuru and Muthaura. The prosecutor says that her team has projected that Uhuru and Muthaura will need some approximate 286 hours, which can be translated into 11 weeks, to cross-examine the prosecution witnesses.
Bensouda also says that she estimates that she will need a total of 24 hours or an approximate five days to question some three proposed experts. She also says that the three experts will need an estimated 30 hours in the case against Ruto and Sang’.
She will question 43 witnesses in the case against Ruto and Sang. Bensouda also presented a list with 945 items that her team will present as evidence against Uhuru and Muthaura which she has divided into two parts.
The first part contains witness statements and related material such as annexes to witness statements and contains 604 items. The second part contains all other documentary evidence and audio/video material and comprises 341 items.
“The prosecution has also requested the transcription and translation of 41 audio/video materials it seeks to rely upon, which are not available in any of the official languages of the Court,” Bensouda said.
In the Ruto and Sang’ case, Bensouda presented a list of 1,529 items including 1,115 witness statements and related material such as annexes. The second part contains all other documentary evidence and audio/video material and comprises 414 items.
The prosecution has also told the Trial Chamber V judges that it may seek leave to amend the list of witnesses and/or the list of evidence “if it is able to obtain certain materials that it has not yet had access to, or if it successfully secures the cooperation of witnesses it has not yet been permitted to interview.”
“These materials and/or persons are the subjects of pending or only very recently granted Prosecutorial requests for cooperation directed at institutions and also certain States, invoking their assistance obligations under Part 9 of the Statute,” Bensouda told the judges.
The prosecutor also told the judges that she has not been able to access some Kenyans including government officials. The Prosecution also wants to submit video material from some journalists but is waiting for the approval of their employers.
Bensouda said that she had not been able to access documents including medical, financial, and official records, repeatedly requested from the Kenyan government.
Bensouda explained that she had not included all the evidence in the 75-page narrative brief. She said that the prosecution had attempted to draft the pre-trial brief in such a way as to minimise the need for redactions and to ensure that the defence is provided with maximum notice regarding the nature of the prosecution’s case.
“As the brief identifies individuals whom the defence may wish to call as witnesses, the prosecution will consult with the defence regarding the appropriate redactions before filing a public redacted version,” Bensouda said.