Kenya cases are difficult, says top ICC judge By BERNARD NAMUNANE and Agencies | Thursday, February 14   2013 at  09:10

ICC president Sang-hyun Song. FILE | NATION MEDUIA GROUP 

Bail terms for presidential frontrunner Uhuru Kenyatta and his running mate William Ruto are complicating the Kenya case, the International Criminal Court president, Mr Sang-Hyun Song, has said.

The ICC president, the equivalent of a chief justice, expressed the sentiments a day to a status conference at The Hague scheduled for Thursday to agree on how the trial proceedings will be conducted.

The freedom which the suspects will enjoy during the period, will also be on the cards.

Judge Song admitted that the ICC was encountering difficulties in prosecuting the cases facing Mr Kenyatta and former Head of Civil Service Francis Muthaura on the one hand and on the other case against Mr Ruto and Kass FM radio journalist Joshua arap Sang.

Even though the trials for the crimes against humanity charges are set to start in April, he said a number of factors were complicating the case. He did not elaborate.

“Since there are many variables here, we don’t know what is going to happen. At the moment, I must admit that the logistic aspect of the Kenya case, for example, is not necessarily easy,” he said.

Judge Song, who in his capacity as the ICC president plays the role of an appeal judge on issues relating to the freedom of the suspects, was replying to a question by a student at Columbia University in New York, USA.

He argued that although Mr Kenyatta, Mr Ruto, Mr Muthaura and Mr Sang promised to attend the proceedings during the ruling at the confirmation of charges hearings, there were doubts if they will attend, in person, the entire trials.

“These four suspects are under summons to appear. They are not arrested people. They kept on saying they will comply with the ICC procedures and so on and so forth.”

Given assurance

The remarks by the judge are a pointer to the issues the ICC is grappling with even though Mr Kenyatta and Mr Ruto have given their assurance that they will see the cases through.

Mr Nick Kaufman, an advocate at The Hague, argued that Judge Song could have been expressing his opinion on ways to ensure that the four suspects attend the trials.

Kenya deputy prime minister Uhuru Kenyatta.

He said: “I don’t think anything can or should be read into the quotes attributed to President Song, who, as a potential appeal judge on matters pertaining to the accused’s liberty, would be at pains not to express an opinion one way or another as to the modalities for ensuring attendance.”

He contends that the question of attendance of the trial proceedings by the four suspects will be one of the many issues to be discussed during the status conference set for today at The Hague.

While Mr Muthaura and Mr Sang flew to the Hague on Tuesday to attend the conference, Mr Kenyatta and Mr Ruto opted for a video link which will be held at a secret location in Nairobi.

“These matters are precisely the issues which I believe will be addressed at the status conference which is an audience held from time to time to discuss preparations for trial or other peripheral issues not involving the hearing of witnesses,” said Mr Kaufman.

Trial Chamber judges Kuniko Ozaki, Christine Van den Wyngaert and Chile Eboe-Osuji, in their communication, said the conference will deal with issues which include the liberty of the suspects.

Discuss freedom

“The main purpose of the status conference is to discuss the conditions of the summonses to appear issued by the Pre-Trial Chamber as well as to address any practical, financial and/or legal matters related to the attendance of the accused at trial, including the modalities of the accused’s stay on the territory of the host state during the trial,” they said.

This means that they will discuss afresh the bond which gives the suspects freedom and accompanying conditions, the scope of their visas, the schedules and length of the hearings, expected breaks, number of live witnesses and the hours to be spent on cross-examination by both prosecution and defence legal teams.

Judge Song spoke in the wake of coded warnings by the US, Britain, France and Switzerland that choices at the election will have consequences, interpreted as a warning against voting for Mr Kenyatta.

The ICC question also featured prominently during Monday’s presidential debate during which frontrunner Prime Minister Raila Odinga (Cord), former Gichugu MP Martha Karua (Narc-K) and businessman Mohamed Dida questioned how Mr Kenyatta will be able to run a government while attending trials at The Hague.

On Wednesday, the National Council of Churches of Kenya (NCCK) joined the debate, warning that Mr Kenyatta and Mr Ruto will find it difficult to run a government while going through trial at the ICC.

Said secretary-general Peter Karanja: “It will not be easy running a government while away as compared to from State House, but we ask Kenyans to exercise their discretion and vote as they want.”

Despite this, Rev Karanja said NCCK supports all the eight presidential candidates since they were exercising their democratic right as they await a Friday ruling by the High Court whether the Jubilee Colaition leaders are eligible to vie for elective offices.