Advice For Kamwana From Ole Nkarei, esq.

[RV Pundit]

If there was a sealed arrest warrant;we won't have had a dissenting judge. I doubt the presiding judge can issue an arrest warrant at this stage without hearing from all side and with a full bench. OTP of course can make that application while Uhuru is in the ICC.

I see nothing wrong with the OTP unsealing an arrest warrant for Jitoto as long as he has the evidence against him. It would not be something out of the ordinary. The man is a suspect who had his case confirmed. He is out on bond with clear terms. If he has violated the terms the OTP is within her rights to ask the judges to pull the plug on him.

[Omollo]

If there was a sealed arrest warrant;we won't have had a dissenting judge. I doubt the presiding judge can issue an arrest warrant at this stage without hearing from all side and with a full bench. OTP of course can make that application while Uhuru is in the ICC.

A warrant for new crimes such as Witness Tampering and Obstruction of Justice would be issued by the pre-trial chamber. Being sealed means even the trial chamber judges would not be privy to it.

[MOON Ki]

Mya88 wrote:

"If the OTP's argument is that of obstruction of justice in ouru's position as pork....resulting in insufficient evidence for Bensouda to prosecute, then am afraid there maybe be no case against him.....after all ouru can argue that his priority and that of his goverment is Kenya first and not to gather evidence against himself for Bensouda."

I see that there are several comments along those lines.   To my mind, they are somewhat off.

First, being asked to refrain from obstructing justice is not the same as being asked to gather evidence against himself.

Second, and more importantly, the fact that he is there in "individual capacity" does not mean that his presidency is forgotten:

* Let us suppose that you as an important person in the Nipate.Org government have been given a nice limo to use.   Let us suppose that you commit a crime and them use the limo to flee.   The fact that you have the limo in your official capacity does not mean that you cannot be asked about it and what you did with it.   And there will be more questions if you then use the car to try and run down the prosecutor when he or she is looking into things at the scene of the original crime.

* For a concrete ICC case, consider the case against Gaddafi; at the time of his death, there was an ICC arrest warrant for him, and it was in his individual capacity.   The basic charge against him was that he had used Libyan State and Security forces to commit crimes against humanity.    That was it.   The obvious issue that then arose was one of how he had managed to do that.    Lo and behold, it turned that being the head of state gave him such powers and he had abused them.

Another example is that of Bashir of Sudan.   He is charged in his individual capacity.     But his charge-sheet states that, by way of being the leader of Sudan:

"he was in full control of all branches of the apparatus of the Republic of the Sudan, including the Sudanese Armed Forces and their allied Janjaweed Militia, the Sudanese Police Force, the NISS and the HAC; and (iii) that he used such control to secure the implementation of the common plan;"

Another case of an individual using state power to commit crimes for which he is individually responsible. 

The separation of "individually capacity" and "presidency" mean no more than that in such matters one's actions cannot and must not be  taken to represent the state.

[RV Pundit]

That is interesting. You're absolutely correct.

A warrant for new crimes such as Witness Tampering and Obstruction of Justice would be issued by the pre-trial chamber. Being sealed means even the trial chamber judges would not be privy to it.

[Kim Jong-Un's Pajama Pants]

Mya88 wrote:

"If the OTP's argument is that of obstruction of justice in ouru's position as pork....resulting in insufficient evidence for Bensouda to prosecute, then am afraid there maybe be no case against him.....after all ouru can argue that his priority and that of his goverment is Kenya first and not to gather evidence against himself for Bensouda."

The separation of "individually capacity" and "presidency" mean no more than that in such matters one's actions cannot and must not be  taken to represent the state.

MOON Ki,

That makes sense.  I personally have not thought there is any confusion when it is mentioned that the red eyed one is charged as an individual.  To me, it means that his status is not going to be given any due consideration beyond the purposes of the case.

I see mya88 mention the lack of a case in the event of successful obstruction of justice.  Does that make any sense to you?  That judges can acknowledge that a criminal has succesfuly tampered with a case.  So they have no choice but to let him walk.

[RV Pundit]

That i think is the central question.

If judges are convinced gov lead by the accused has obstructed the prosecution (and i think they've given the contempt they treat Githu with); then question is what can judges do;

OTP want the case postponed indefinitely (hopefully until Uhuru gov lapses);
The victims want justice now;
Uhuru want his case terminated now...given he has the right to speedy trial...not to remain an accused indefinitely.

The Judges i bet will weave a middle ground that leave everyone satisfied somehow.

And the middle ground for me would be judge to threaten sanctions against Uhuru & GOK and issue fresh deadline when gov will have to abide.

Another middle ground would be to declare a mistrial...and the process would begin afresh.

They cannot terminate the proceedings (and allow Uhuru's double jeopardy protection) neither can they justify indefinite adjournment.

That judges can acknowledge that a criminal has succesfuly tampered with a case.  So they have no choice but to let him walk.

[MOON Ki]

"I see mya88 mention the lack of a case in the event of successful obstruction of justice.  Does that make any sense to you?  That judges can acknowledge that a criminal has succesfuly tampered with a case.  So they have no choice but to let him walk."

I personally think it would be very difficult to prove that Uhuru has been involved in obstructing justice.  At best, but also quite difficult, the OTP could prove that GoK has been at it; but the problem would still be one of making a connection to Uhuru.

Nevertheless, if it could be proved that Uhuru had done it, then there is no question of him walking.   Note that Bemba now has two cases: his original "crimes against humanity" one, and the new "interfering with justice".   And it would not be surprising if the latter had some effect on the former.   (By the way the OTP and Pre-Trial judge have a wry sense of humour: even though Bemba is locked up, a new arrest warrant was issued against him, and he was served in his cell!)

As I see it, the real issue now is whether the current charges against Uhuru are dropped permanently or whether it will be a "to be continued", waiting for when he is no longer PORK or until the OTP can get more juice.   If the judges are sure that GoK has been interfering---we know it it has, but it needs to be proven---then it will be a "to be continued".

Also in that regard, while the focus is on the OTP, I think serious attention ought to be paid to the Victims' Legal Rep and whatever performance he gives.  (The judges are very mindful of the victims' views.)  Fergal Gaynor is one the best such reps the court has had, and he has shown that he is prepared to throw hard blows, even if a few land below the belt.   It will be interesting to see how he does.     

[MOON Ki]

RV Pundit wrote:

"They cannot terminate the proceedings (and allow Uhuru's double jeopardy protection) neither can they justify indefinite adjournment."

That is not quite correct.    The "double jeopardy" rule (Article 20 of the Rome Statute) applies only if there is a conviction or an acquittal.    The proceedings could be stopped now without a conviction or acquittal, as happened in Muthaura's case, and that leaves the OTP free to charge him again later.

It is for that reason that the Defence has been asking not just that the charges be withdrawn or terminated but also that a final adjudication be made.     The latter is actually not possible, and the OTP, way back in February, already made a good case on that:

http://www.icc-cpi.int/iccdocs/doc/doc1724937.pdf

I did not find the Defence response very convincing:

http://www.icc-cpi.int/iccdocs/doc/doc1734226.pdf

[RV Pundit]

Thanks. Noted. I think indefinite adjournment will also be problematic..to both Uhuru (his right to speedy trial) and victim justice quest...and therefore i think judges will have to tighten screws by giving orders with possible sanction(what) and strict timelines. They have to find a way out of current impasse...

Another possibility is to refer the case back to pre-trial....clearly Bensauda is not ready...and such kind of ping-pong can better be dealt in pre-trial.Beside the recanting witness mean the confirmed case has lost direction..and new evidence potentially lead to new facts (maybe even new charges) that ought to be retested in pre-trial.

RV Pundit wrote:

"They cannot terminate the proceedings (and allow Uhuru's double jeopardy protection) neither can they justify indefinite adjournment."

That is not quite correct.    The "double jeopardy" rule (Article 20 of the Rome Statute) applies only if there is a conviction or an acquittal.    The proceedings could be stopped now without a conviction or acquittal, as happened in Muthaura's case, and that leaves the OTP free to charge him again later.

It is for that reason that the Defence has been asking not just that the charges be withdrawn or terminated but also that a final adjudication be made.     The latter is actually not possible, and the OTP, way back in February, already made a good case on that:

http://www.icc-cpi.int/iccdocs/doc/doc1724937.pdf

I did not find the Defence response very convincing:

http://www.icc-cpi.int/iccdocs/doc/doc1734226.pdf

[RV Pundit]

The Article 64 has trial chamber powers and functions.

64(4):The Trial Chamber may, if necessary for its effective and fair functioning, refer
preliminary issues to the Pre-Trial Chamber or, if necessary, to another available
judge of the Pre-Trial Division.

And this is what i think the judges will consider doing...kick the ball back to Ekatarina where gov ping-pong with OTP can be dealt with as trial chamber does it what it suppose to do...deal with crystallized confirmed cases.

OTP can take seek adjournment from pre-trial chamber and restart or continue investigation.

[MOON Ki]

RV Pundit wrote:

"I think indefinite adjournment will also be problematic..to both Uhuru (his right to speedy trial) and victim justice quest...and therefore i think judges will have to tighten screws by giving orders with possible sanction(what) and strict timelines. They have to find a way out of current impasse..."

I agree.   The problem, once again is Prof. Amicus Mortician: As I see it, had he not jerked the judges around, termination now would probably be more of a straightforward argument.   

Eboe-Osuji is no longer a judge in the Uhuru case, but given the OTP's newly found vigour in "interference with justice" matters, something he wrote in the Muthaura case [in which GoK recalcitrance was also alleged as a factor] comes to mind:

"In my view, where there is credible evidence connecting a defendant to the sort of conducts emphasised above, the consequence should not be withdrawal of the charges against him. Lest, other defendants begin to view those conducts as passports to impunity."

[MOON Ki]

RV Pundit wrote:

"And this is what i think the judges will consider doing...kick the ball back to Ekatarina where gov ping-pong with OTP can be dealt with as trial chamber does it what it suppose to do...deal with crystallized confirmed cases."

I don't see that happening:

* The issue here can hardly be considered a "preliminary issue".

* When the Kabutu (Witness 4) matter first came up, the first thing the Defence did was to make a request under Article 64(4), for the matter to go back to the Pre-Trial Chamber.    The judges declined to send it back, stating, in effect, that things were too far gone:

"The Chamber also fails to see how those post-confirmation developments could justify a referral of the case back to the Pre-Trial Chamber for reconsideration. These developments occurred during the period when the Chamber had responsibility for the conduct of the proceedings. It is more efficient, expeditious and appropriate for the Chamber to address these issues and evaluate the impact on the Prosecution's case during the course of the trial rather than refer the case to the Pre-Trial Chamber for what would amount to a "fresh" confirmation."

http://www.icc-cpi.int/iccdocs/doc/doc1585619.pdf

[RV Pundit]

Kabutu was a minor bump. This case has had crucial 11 and 12 witness recanting... The case has hobbled... OTP want indefinite adjournment  to collect "new" evidence. There is a possibility Uhuru will be facing an new case that will need to be tested and confirmed in pre-trial. The trial chamber cannot make this anymore expect expeditious than having this case back to pre-trial chamber. It would traversty if they adjourned indefinitely for both Uhuru and victim..they either issue orders to unlock the impasse..or pass the ball.

RV Pundit wrote:

"And this is what i think the judges will consider doing...kick the ball back to Ekatarina where gov ping-pong with OTP can be dealt with as trial chamber does it what it suppose to do...deal with crystallized confirmed cases."

I don't see that happening:

* The issue here can hardly be considered a "preliminary issue".

* When the Kabutu (Witness 4) matter first came up, the first thing the Defence did was to make a request under Article 64(4), for the matter to go back to the Pre-Trial Chamber.    The judges declined to send it back, stating, in effect, that things were too far gone:

"The Chamber also fails to see how those post-confirmation developments could justify a referral of the case back to the Pre-Trial Chamber for reconsideration. These developments occurred during the period when the Chamber had responsibility for the conduct of the proceedings. It is more efficient, expeditious and appropriate for the Chamber to address these issues and evaluate the impact on the Prosecution's case during the course of the trial rather than refer the case to the Pre-Trial Chamber for what would amount to a "fresh" confirmation."

http://www.icc-cpi.int/iccdocs/doc/doc1585619.pdf

[MOON Ki]

Pundit:

The point about the Kabutu case is not whether it was minor or major; it is that the Trial Chamber did not care to send the case back to the Pre-Trial Chamber.

As for "new evidence" adding up to "a new case that will need to be tested and confirmed in pre-trial",  please note all the arguments and decisions that have been made---in the Kenyan and other cases---in relation to the collection of evidence, all the way to the Appeals Chamber.   

The judicial conclusion, in a nutshell:

(a) Ideally, or all most of the OTP's evidence should be collected prior to Confirmation Hearings.

(b) It is understood that in certain circumstances (a) might be impossible.

(c) Legally, the OTP can continue collecting evidence for as long as it wishes, provided all that is within the parameters of the charges that have been filed.  But it has to make a good case for late-in-the-day evidence.

Specifically, in the Uhuru-Muthaura case, the Defence argued that (i) they had been hit with so much new evidence, so late in the day, that (ii) they were facing an entirely new case.   The judges agreed with (i) and had very strong words for the OTP in that regard; but they did not buy the Defence line on (ii).