The Story The Story Our Analysis

Should the Kenya Trial Be Held in Arusha or The Hague?

In this 17 June 2013 article, Tom Maliti looks at an unusual agreement between the Prosecution and the Defense on whether trials might be partially held in either Kenya or Tanzania. The article was originally published at www.icckenya.org.

The accused in both Kenya cases have submitted applications to move the venue of their trials from the International Criminal Court (ICC), which is based in The Hague, the Netherlands, to either Tanzania or Kenya. It is unlikely these applications will be granted in their entirety, however, the court may decide to have part of the trials held in Arusha, Tanzania depending on logistical, financial, and other considerations.

The likelihood of the entire trial proceedings of President Uhuru Muigai Kenyatta, Deputy President William Samoei Ruto, and radio journalist Joshua arap Sang being held in the East Africa region is remote because the venue preferred by most parties, the International Criminal Tribunal for Rwanda (ICTR) in Arusha, has wound down most of its activities and is unlikely to meet all the requirements for the Kenya cases at the ICC.

The ICTR has been absorbed into a new United Nations judicial body called the Mechanism for International Criminal Tribunals because all ICTR trials have concluded or been transferred to various national jurisdictions. The tribunal is now left with 17 appeals and unexecuted warrants for three individuals. The Arusha International Conference Center, which has been the seat of the tribunal since it was formed in November 1994, is home to the Arusha branch of the Mechanism for International Criminal Tribunals. For the Kenya cases at the ICC, the issue is not just facilities but services, such as witness protection, which the ICTR has scaled down considerably. Thus, it is unclear whether the ICTR would be able to accommodate the needs of the ICC.

One possible scenario is that the trial judges recommend to the Presidency of the ICC that some sessions of the Kenya cases be held in Arusha. This would be in line with the recommendations of the ICC Registry and Office of the Prosecutor (OTP). The Registry has suggested that the proceedings away from The Hague take place in only two sittings of three to four weeks at the most. ICC Prosecutor Fatou Bensouda has suggested that because she is concerned about the security of witnesses, the court should consider holding just the opening and closing statements and testimonies of the accused and international experts in Arusha.

The Ruto and Sang trial is scheduled to start at the end of May, which leaves little time for the Registry to prepare in case the judges want to move some sessions of the trials to Arusha. When the Registry was asked for its observations on whether it is possible to arrange for the accused to participate in their hearings remotely from Kenya, the Registry noted that it would take them at least two months to set up an appropriate arrangement for a video link between The Hague and Nairobi. It follows that even for some sessions to be held in Arusha, the Registry would need some lead time to organize everything, which in the case of the Ruto and Sang trial does not seem possible.

Another important factor in deciding the trial venue will be the judges’ own schedules. All the judges of Trial Chamber V are also adjudicating other cases at the ICC, and those trials are all taking place at The Hague.

In their applications, lawyers for the accused invoked Articles 3 and 62 of the Rome Statute that allows for the relocation of ICC proceedings. They also referred to Rule 100 in the ICC’s Rules of Procedure and Evidence, which sets out the procedure for a change in venue, in their requests that the trial move to either the ICTR’s facilities or an unspecified venue in Kenya.

A further dimension to this issue has developed since the applications and responses were filed, with Kenya’s Supreme Court confirming on March 30 the election as President and Deputy President of Kenyatta and Ruto respectively. Kenyatta faces five counts of crimes of humanity for his alleged role in violence that followed the 2007 presidential poll and nearly tore apart Kenya. Ruto faces three counts of crimes against humanity for his alleged role in that violence.

The issue of venue first came up in May last year when lawyers for Kenyatta and former Public Service Chief Francis Kirimi Muthaura asked Trial Chamber V judges to consider such a move. They made the request in submissions filed ahead of a June status conference the judges had called to discuss the trial date and a timetable for the prosecution to make full disclosure of their evidence, among other things. In those submissions, in what is referred to as Kenya case two, Kenyatta’s lawyers stated they wanted the trial moved to Kenya. Muthaura’s team said Arusha or Kenya would be suitable.

Trial Chamber V rejected those submissions in November 2012, without prejudice, stating that the requests should be directed to the Presidency of the ICC, which is mandated to make such a decision. The following December, the defense for Muthaura applied to the Presidency of the ICC to have his client’s trial moved to either Arusha or Kenya. The Presidency in response directed Trial Chamber V to get the views of the parties involved in Kenya case two on what their preferred trial venue would be. Since then, however, Trial Chamber V has ordered the charges against Muthaura be withdrawn because the sole witness who made direct allegations against him was compromised.

In January this year, the defense for Ruto and Sang also applied to the Presidency to change the venue of their trial. Until January, neither Ruto nor Sang had indicated that they wanted their trials held away from The Hague. Their application was in response to Muthaura’s submission and the orders the court made flowing from that application. As in the Kenyatta and Muthaura case, the Presidency then ordered Trial Chamber V to seek the views of other parties in the Ruto and Sang case on where they would prefer the trial to be held and make recommendations to the Presidency.

The defense application on behalf of Ruto and Sang noted that “the Trial Chamber has not sought the views of any party in the Kenya 1 case. Nevertheless, the two cases are inextricably linked in terms of their listing and it would be impractical to have the two trials heard in different places as far apart as The Hague and East Africa.”

They argued that holding the trials at The Hague would disrupt their clients’ private and public lives, “which would be deleterious to their physical, psychological and economic well-being.” The prosecution had indicated in submissions filed on May 28 last year that they expected to take 12 months presenting their case against Ruto and Sang and a similar period for the Kenyatta case.

“In the case of Ruto who holds public office, and as a matter of public record, is aspiring for higher office, it would also mean taking him away from exercising his public duty,” the lawyers stated in their application filed on January 24, about a month and a half before Ruto was declared Deputy President. “A change of venue, on the other hand, would mitigate those disruptions and costs to the accused without detracting from the smooth running of the trial.”

Defense lawyers also argue that holding the trial anywhere in East Africa will help all involved to better understand the geographical and social context surrounding the case.

“It is well documented that conducting trials in the region where such crimes were allegedly committed greatly assists entrenching the legacy of the court,” Ruto and Sang’s lawyers stated in their application. “In the present context, it should give the people of Kenya a sense of ownership of the judicial process and should render the proceedings more directly relevant.”

Kenyatta’s defense lawyers highlighted the law allowing the court to elect where it will sit for trial and stated that their client would respect any order of the court concerning the trial venue, without giving any preference. This ambivalence contrasts with the clear preference stated in their submission in May last year that their client wanted Kenya to be the venue of his trial.

The prosecution and legal representatives of the victims in the Kenya cases do not object to moving the trials at The Hague-based International Criminal Court (ICC) to either Arusha, Tanzania or a location within Kenya, except for one important caveat: what they say are the high security risks of such a venue change.

They believe moving the trials from The Hague would put witnesses at greater risk, especially when they testify in court, as well as put the victims themselves at risk. They also think those risks could threaten the integrity of the trials.

The prosecution and victims’ representatives raised these issues in responses to the applications by the accused in the Kenya cases to the Presidency of the ICC to change the venue of the trials. The accused said that they are applying for a change of venue to bring the trials closer home, arguing that it best serves the interest of justice. This is something the prosecution and victims accept, with conditions

ICC Prosecutor Fatou Bensouda, in her responses to the applications in Kenya case one andcase two, stated that a pre-condition for moving the venue of the trials was the safety and security of witnesses, victims, and ICC staff. With reference to the security of witnesses and victims, Bensouda referred the judges to previous filings on the matter. In her response to the issue of venue in Kenya case two – the case against Uhuru Muigai Kenyatta, Bensouda highlighted some of her security concerns. This is something she did not do for Kenya case one against William Samoei Ruto and Joshua arap Sang.

Those concerns “include the extra-judicial killings and forced disappearances of individuals with direct knowledge of the Accused’s involvement in the post-election violence, perceived Prosecution witnesses being threatened not to testify against the Accused, and the persistent and systematic attempts, including by individuals holding themselves out as associates of the Accused, to bribe and/or threaten witnesses not to testify at trial or to provide false exculpatory testimony,” Bensouda said. She noted she was worried this would become worse if the trial moved to Kenya, or to a lesser extent, if the trial was moved to Arusha.

Bensouda, however, did suggest that the court could partially hold the trials in East Africa. She proposed the court holds   the opening and/or closing statements, testimonies of the accused, and the testimonies of international experts in Arusha or Kenya.

“Hearings of this nature could strike the right balance between bringing the trial as close as possible to the affected region and thus satisfy the public interest in the case, and the need to protect witnesses,” Bensouda said. “If so desired, the Chamber might also be able to use these opportunities to visit locations of relevance to the case in the presence of the parties (“site visits”).”

Lawyers for victims in both cases stated that the overwhelming majority of their clients did not want the trials moved from The Hague. They, however, made differing submissions on the issue. Wilfred Nderitu, the lawyer for the victims in the Ruto and Sang case, stated that 82 percent of his clients wanted the trials to remain in The Hague. One reason they gave was if the trial was held in Kenya, then the accused or their sympathizers could mobilize “truck loads” of supporters to attend court proceedings and most likely intimidate witnesses and victims.

“This view was in allusion to a common phenomenon in Kenya in the 1980s and 1990s, where powerful individuals charged with criminal offences would mobilize scores of supporters ethnically or politically affiliated to them to attend court, in the hope that they would intimidate the presiding officer of the court to make decisions favourable to the persons charged,” Nderitu explained in his submission. He, however, submitted to the judges that he thought they should consider changing the venue of the trial to Arusha.

Nderitu’s submission is unusual because usually a lawyer argues what his client(s) has instructed him to present. He, however, gave reasons for his approach. He said that the court’s ruling that where he cannot represent his clients’ in person then a representative of the Office of the Public Counsel for Victims would do so has limited his ability to effectively present his clients’ views. Nderitu gave as an example the fact that he was unable to attend in person the status conference in February this year, something he believes he would have been able to if the proceedings were taking place in Arusha. Nderitu’s limited travel to The Hague is partly due to an inelastic budget the court has provided and that he has to work with.

“It is the Victims’ Representative (submission) that a change of the place for trial to Arusha, Tanzania, would greatly mitigate the challenges faced by him in attempting to facilitate a meaningful participation by, and representation of, victims within an extremely limited budget, particularly having regard to the number of victims he represents, and the number of field visits expected to be made by him and his Team in order to ensure effective representation,” Nderitu said.

Fergal Gaynor, who represents the victims in the Kenyatta case, noted that 97.4 percent of his clients preferred the trial to be held in The Hague. He, however, acknowledged that several academics had observed that holding trials near where the crimes had been committed helped “ensure that the local communities are familiar with the trial proceedings, have a greater sense of ownership of that process, and helps to reduce the perception of the Court as being a ‘foreign’ court.” However, he also noted that those commentators also emphasized the security of witnesses and the impartiality of the process is paramount.

“In the present case, holding the trial in Arusha or in Kenya would present security challenges which threaten the integrity of the trial process,” Gaynor said in his submission. He asked that the court hold the trial in The Hague.

Marc Dubuisson, in submissions on behalf of the Registry on the Case One and Case Two applications, noted that as of the end of February 2013, Kenya had not signed or ratified the Agreement of Privileges and Immunities with the Court, which is a key factor in the ability of the ICC working in any country. He noted that Kenya had, however, exchanged letters covering the issue of privileges and immunities. This was done during a September 2010 visit the then ICC Registrar Silvana Arbia made to Kenya and met with the Cabinet committee that dealt with ICC matters. In the case of Tanzania, which hosts the International Criminal Tribunal for Rwanda (ICTR), the government has signed the Agreement of Privileges and Immunities, but it has not ratified it. Nor had Tanzania replied, as of March 8 this year, to a letter Arbia had sent them.

Other matters, such as a security assessment, which is necessary for moving the trial venue, staffing requirements, logistics, and costs cannot be determined until the court decides whether the full proceedings of the trials will be held at The Hague, or only part of them, Dubuisson said.

He suggested that the court use the facilities of the ICTR, if a decision was made to move the trials away from The Hague. Dubuisson said that this would be dependent on the agreement of both the ICTR and the Tanzanian government, which hosts the tribunal.

He concluded with suggestion that the court limits its proceedings outside The Hague to “two relatively short periods of 3-4 weeks maximum during which the opening statements and specific witnesses could be called to testify respectively.”

Going by the submissions the Registry and prosecution made, it is a possibility that a limited number of sessions may be held at the facilities of the ICTR. However, this all depends on the judges’ recommendations to the ICC Presidency.

This is not the first time the issue of the venue of proceedings has been raised in the Kenya cases. It was first broached ahead of the confirmation of charges hearings, which took place in September and October 2011. The Presidency at the time did not communicate any specific decision. The Single Judge of Pre-Trial Chamber II, Ekatrina Trendafilova, did note in a June 29, 2011 decision that the chamber would not consider holding those hearings in Kenya but forwarded the submissions of all involved to the Presidency, who would make a final decision on the matter. Nothing further was heard on the issue from the court, and the 2011 hearings were held at The Hague.

Our Analysis The Story Our Analysis

Same facts, different perspectives: covering the venue issue at the ICC Kenya trials

Based on a reading of the coverage, and on several interviews with Tom Maliti and other Kenyan journalists who have covered the ICC trials, Nicholas Benequista gives a comparative analysis of the ICC Kenya Monitor and the mainstream press, focusing on the issue of venue selection. A small exercise that raises big questions about truth, independence and the role of the journalist.

When you read the article from the ICC Kenya Monitor featured here (on “the story” tab), and then look at how the Kenyan mainstream press has covered the same issue, you will likely notice some important differences.

Doing this, we came to the conclusion that the Kenyan press is more likely to portray the proceedings of the trial as a conflict or clash between the Prosecution and the Defense. The ICC trial is – viewed from the pages of the Nation, Standard and Star – a political contest.

To be fair, by virtue of the same exercise, one might characterize the ICC Kenya Monitor’s coverage as academic and depoliticizing. The ICC Kenya Monitor focuses more on what is as stake legally than politically – the precedent that the case will set for the ICC and for international law.

In that sense, both perspectives are valid and both are skewed; both are versions of the truth. But asking why they are different gives even greater insight.

Prior to that, however, this posting requires a caveat because the trials of President Uhuru Kenyatta, Deputy President William Ruto and journalist Joshua arap Sang are a highly contentious and sensitive issue.

The Open Society Foundations, the network that funds the ICC Kenya Monitor, has recently been accused of pushing a political agenda in Kenya – particularly against President Kenyatta. During the recent political campaign, Tom Maliti’s name (matched erroneously with a photo of someone else) appeared on an organogram that alleged to depict a network of conspirators linked to the Open Society Foundations.

To our knowledge, however, the accuracy and integrity of Tom’s work has never been questioned. Tom is a respected veteran of the Associated Press, and has been a valuable advisor to the Networked News Lab. He has consistently demonstrated his commitment to the highest journalistic standards, including on the work we analyze here.

The accompanying article looks at the issue of where the trials for the three aforementioned individuals should be hosted. It bears reminding that the venue for the various hearings and trials for these three individuals (and of three others, who have since had their cases dismissed) has been the subject of separate legal proceedings and discussions.

How did ICC Kenya handle this subject differently from Kenya’s mainstream media, and what do these differences reveal about Kenyan media?

As a first point of comparison, the ICC Kenya Monitor’s lengthy feature on the issue has no comparable piece in the Kenyan press, which has instead covered the issue with each development deemed newsworthy. The ICC Kenya Monitor does not have the same obligation to fill a newspaper with content, and does not have the commercial motivation to compete for the scoop. As a website, it also has virtually unlimited space (a 2,700-word article is a rarity in a newspaper). This way, Tom had the luxury to wait until all the views on the venue for the trials had been submitted.

Indeed, the way that the national press covers the issue is crucial to how the event appears to readers.

Take the example of one of the earliest articles this year on the matter of venue (9 February 2013) by the Star. There is nothing factually wrong with the story; indeed, it relies on the same facts as the ICC Kenya Monitor article featured here. The only difference is that the Star chooses to emphasize the aspects of Bensouda’s position that clashed with the Prosecution’s opinion.

Another salient feature of the Kenyan press coverage, by comparison to the ICC Kenya Monitor, is that it tends to downplay the opinions of the victims’ lawyer (the ICC is exceptional in that the victims have a lawyer present to represent them on issues of procedure) and of the Registry, the administrative office of the ICC. The Kenyan press rarely includes commentary from these sources, with the impression given that the choice of venue is largely between the Prosecution and Defense, with judges arbitrating (or perhaps as political actors themselves).

Indeed, in blow-by-blow coverage of the venue selection, we found only one instance in the three papers surveyed where an article was based primarily on a document or statement released by one of these parties (Post-poll victims welcome ICC trial venue decision, Nation, 17 July 2013).

By contrast, the ICC Kenya Monitor presents a decidedly more complex situation. The trial judges, victims’ lawyer, Prosecution, and Defense all acknowledge justice is best served by holding a trial as close as possible to events. The judges also recognize the disruptions and costs caused to the defendants by holding the trial in The Hague. The Prosecutor and victims’ lawyer asks the court to consider concerns over the security of witnesses. And administrative hurdles, such as a lack of cooperation from Tanzania and the schedule of the judges, are also influential. The decision, from the view of the ICC Kenya Monitor, is a process of negotiation and compromise, rather than a conflict.

The Kenyan coverage, by framing the trial as a political contest, allows the reader to choose sides; it accommodates the different views on the trial that exist in Kenyan society. It is deeply embedded in the Kenyan debate over the court’s role. The ICC Kenya Monitor sidesteps this; it tries to stand outside the social divisions by keeping its reporting firmly within the proceedings of the court. In doing so, the Monitor evades questions – political questions – about the authority and role of the court. Though perhaps more importantly, it raises fascinating questions about the role (or roles) of the journalist.