It is a case where we must agree to disagree. This blogger has no love for the International Criminal Court, or its Office of the Prosecutor, and is of the opinion that the decision by the member States of the African Union to withdraw from the Rome Statute will be vindicated in the long run, especially if the African Union sets up its own international crimes tribunal. But in the trial of the Deputy President of Kenya and a radio journalist, this blogger is forced to disagree with Senior Counsel Ahmednasir Abdullahi who advances the preposterous argument that the trial has become akin to a trial by "unflattering regimes like military juntas and dodgy and unaccountable tribunals." (Let Ruto, Sang confront accusers in open court, Sunday Nation, 22/09/13.)
Mr Abdullahi relies on the following planks to advance his argument: that the Court is overly solicitous of the Office of the Prosecutor, granting it its every request; and that the decision of the Court to hear the testimony of the first witness called to the stand by the prosecution in camera is designed to deny the defence, and the public, an opportunity to confront their accuser in public. That, at least, seems to be the sum of the Senior Counsel's gripe with the ICC. And he is wrong.
His blanket statement that "[In] camera trials are a rarity in criminal trials. Such trials are associated with unflattering regimes like military juntas and dodgy and unaccountable tribunals" is true, but not in the way that he frames it. Criminal courts will not hesitate to hide the identities of child witnesses or witnesses who have been victims of sexual offences. In certain circumstances, witnesses who fear for their lives may have their identities hidden, especially if they wish to return to their communities, and do not wish to be spirited away to witness protection programmes. It is at the discretion of the court to determine when to hide the identity of a witness from both the accused and the public. In the Deputy President's case, while charges were filed against him before he became the Deputy President, the change in his circumstances necessarily changes the nature of the relationship between him and his accusers. The fear by the Office of the Prosecutor that the witness may likely be molested after giving her testimony, or if the Deputy President is acquitted, remains strong.
What Mr Abdullahi must consider is that this is not a secret trial; it is a public trial with parts of it that are kept secret. Even when the Office of the Prosecutor was applying to the ICC for permission to file charges against the accused persons in the Kenya cases, the Prosecutor relied on some secret evidence. This evidence was disclosed to the accused; but it was not generally disclosed to the public. Mr Abdullahi has rightly pointed out that the accused is entitled to a fair trial, which would include that it is not held in secret, or by applying secret rules of procedure, or relying on secret evidence and testimony known only to the prosecution and heard by a secret panel of judges who are accountable to no one. This is not the case with the extant trial. While a witness has been allowed to testify in secret, and some of that witnesses testimony has not been disclosed to the public, only the identity of the witness has been kept from the defence and not the substance of her testimony. The defence need not know the identity of the witness in order to challenge the sum and substance of that witnesses testimony. If the accused person did not do what the witness claimed that he did, it is simplicity itself to prove that. On that plank, alone, Mr Abdullahi must reconsider his attack on the trial.
However, Mr Abdullahi's claim that the Trial Chamber V and, indeed, the entire ICC, is led by the nose by the Office of the Prosecutor deserves greater scrutiny. If it is true then the whole process has been charade. It would mean that when the Office of the Prosecutor applied to the Pre-trial Chamber II for permission to investigate the Kenya situation, that the sole judge who refused to go along with the majority was merely play-acting; the Pre-trial Chamber had already decided in favour of granting permission for the investigation. The same would be true too when the Office of the Prosecutor filed the two cases against six Kenyans; the dissenting judge was merely pulling the wool over our eyes for a decision that had already been determined. Even for conspiracy theorists, this seems a bit over the top.
This blogger is of the opinion that trials cannot to be held in the media; the media can report on a trial, the public can benefit from being informed of it, but neither can make a determination on the facts argued before the court. The court cannot render its judgment based on an opinion poll. Indeed this is what those who suggested that the election of the Deputy President was a "referendum" on whether or not he should stand trial and they were manifestly wrong. If that were the case, then all a person accused of heinous crimes need do is to stand for election; if he is elected, he is innocent and if he is not elected, send him straight to jail without even the bother of a trial. The Deputy President and the radio journalist have been accused of heinous crimes. The process of bringing them to trial has been tortuous, but fair. The trial is proceeding apace. The outcome is no longer in the hands of the press or the public, but in the hands of the prosecution, the defence and the court. If they are acquitted, that should be the end of the affair. Many Kenyans, but surely not all of them, have faith in the ICC process more than they do in Kenya's Judiciary. When this trial is over, we may find out if their faith is misplaced or not.