Kenyan Suspects to Remain Free During ICC Trials But threats to witnesses and concerns about election campaign

raise questions ab out defendants continued freedom. By Judie Kaberia - International Justice - ICC ACR Issue 326, 13 Jul 12 Four Kenyan suspects indicted by the International Criminal Court, ICC, are to b e allowed to remain at liberty pending trial, and if they remain cooperative, th ey might also stay out of custody during trial. However, some legal experts believe that might change if judges in The Hague dec ide that defendants are breaking the rules that allow them to avoid detention. T hey point to reports that witnesses have been subjected to threats in Kenya, and concerns that political campaigning by the two defendants running for the Kenya n presidency might turn nasty. The trials of Deputy Prime Minister Uhuru Kenyatta, former higher education mini ster William Ruto, cabinet secretary Francis Muthaura, and Kass FM radio present er Joshua Arap Sang are due to start on April 11 and 12, 2013. The four are accused of committing crimes against humanity during the violence t hat erupted in the aftermath of Kenyas 2007 presidential election, which saw clas hes between supporters of the Orange Democratic Movement, ODM, and the Party of National Unity, PNU. The two parties now form a governing coalition. The charges against the four were confirmed by judges on January 23 this year, w hile those the ICC prosecutor was seeking against a further two men were rejecte d, William Schabas, professor of law at Middlesex University, explained why the fou r had been allowed to remain at liberty rather than being transferred to the the United Nations detention unit in The Hague. Release during trial is authorised rather exceptionally by international criminal tribunals when the accused person has surrendered to the court, cooperated with it, and has a stable residence in a jurisdiction that is capable of making an a rrest should the person become non-cooperative, he said. I think all of this is pr esent in the Kenya cases. The defendants cooperation with the ICC will be key to whether they remain free i n the run-up to and during trial proceedings. Should trial judges decide that th e situation has changed, they can alter the terms of the summonses issued in Mar ch 2011, which requires the suspects to appear in The Hague whenever requested t o do so. So far, all four have cooperated, and hence they remain at liberty and are free to travel. During their initial appearance in court in April 2011, pre-trial judges imposed a set of conditions on them, which included avoiding all contact with victims o f the post-election violence or with witnesses; refraining from obstructing or i nterfering with the attendance or testimony of a witness; and not interfering wi th the prosecutions investigation. It is for [judges] to monitor whether there are breaches [of the summons conditio ns], Lorraine Smith of the International Bar Association in The Hague, said. Failu re to comply with these conditions could cause the judges to issue a warrant of arrest.

An arrest warrant can come at any point in proceedings ahead of the trial or dur ing it. If there are reasonable grounds to believe that they may obstruct or endanger the investigations or court proceedings, or to prevent commission of a crime, warra nts of arrest can be issued. Interference with victims and witnesses could be se en as obstructing court proceedings, Smith said. At a status conference at the ICC held on June 11-12, the prosecution raised con cerns about threats to its witnesses and said it was important for the court to ensure their protection. Prosecutors did not indicate who was behind the intimidations, and there are no allegations that threats have come directly from the defendants. I am confident that if there was the slightest suggestion that any of the accused did anything to compromise the safety and security of witnesses, the release wo uld be revoked and they would be detained in The Hague, Schabas said. Suspects with high political ambitions One of the unusual aspects of the Kenyan trials at the ICC is that two of the fo ur defendants Kenyatta and Ruto are hoping to become their countrys next presiden t. This weeks announcement of April 11-12 trial dates leaves both men free to contes t an election set for March 4, 2013, a month before proceedings get under way. Political turbulence during the election campaign period, and the possible behav iour of either defendant if elected president, could affect their relationship w ith the ICC and prompt judges to issue arrest warrants. Ruto and Kenyatta both command a huge following, and recently registered their o wn political parties. Thousands of people turned out on May 20 when Kenyatta launched his National All iance party in Nairobi. Ruto had already launched his United Republican Party in January to huge acclaim. With a recent history of election-related communal violence, all eyes will be on the candidates grassroots supporters. James Gondi, director of the International Centre for Transitional Justice in Ke nya, is concerned that Ruto and Kenyatta have been electioneering in ways that m ight incite communities against one another. This is serious,Gondi said. The two are engaged in political sideshows prayer ralli es and ethnic meetings. They are designed to galvanise ethnic bloc, perhaps even to renew violence in the event that the court reaches the conclusion that these persons are guilty. These are dangerous developments. We ought to be concerned. Both Kenyatta and Ruto have denied using rallies to incite violence. (See Fears of Tension Grow in Kenya.) Even so, Gondi believes there is no reason for the court to issue arrest warrant s as long as Kenya upholds its legal duty to cooperate with the ICC. Esther Waweru, a programme officer for legal affairs at the Kenya Human Rights C ommission, is concerned about the negative groundswell that would follow a trial

judgement against either man. When those things [you wanted] do not happen and you have a following such as the y have, then unfortunately that may spur violence, Waweru said. Despite the cooperative behaviour of the Kenyan state as well as all four defend ants so far, some experts say the mood might change once the trial starts. Previous efforts by the Nairobi government to have the trials thrown out by the ICC, or transferred back to Kenya, have led to concerns about the governments wil lingness to stand by proceedings once they actually start. George Kegoro, executive director of the International Commission of Jurists in Kenya, suspects that the presidential bids by Kenyatta and Ruto are a strategy t o block continued government cooperation with the ICC. Asking elections to be held before trials is another way of saying, give us a chan ce to become president where we will be in a position to decide whether Kenya co operates [with the ICC] or not, Kegoro said. Obviously, [what they want] is to ensu re cooperation does not happen. They have gone about making themselves larger th an life even if Kenya wanted to cooperate, they want to make it not happen. Both Ruto and Kenyatta have argued that, if elected president, they would lead K enya in a process of healing and reconciliation. They have portrayed themselves as peacemakers who have never sought to divide the Kenyan people. Kenyas minister for justice, cohesion and constitutional affairs, Eugene Wamalwa, this week, reiterated that the government was supportive of the ICC process. ICC cases are a judicial process that should not be politicised and we should let the law take its course for justice to be done for both the victims and the acc used, he said. Judie Kaberia is an IWPR-trained reporter in Nairobi.