Mariana Pena is an independent expert in international justice. This article is based exclusively on open sources.

The International Criminal Court (ICC) has been investigating crimes committed during the 2007/2008 post-election violence in Kenya since March 2010. Six suspects appeared voluntarily before the Court in April 2011. The Court confirmed charges against four of them in January 2012. Victims have been waiting for justice for more than five years, and the trials have not even yet started. Trials in the two cases (one case against William Ruto and Joseph arap Sang, a.k.a. the Kenya I case, and the other one against Francis Muthaura and Uhuru Kenyatta, a.k.a. the Kenya II case) are set to start on April 10 and 11, 2013, that is less than two months’ time. Investigations have been characterized by security and protection difficulties, which are believed to be one of the reasons for delays in the proceedings. The cases have so far run at a simultaneous pace as it has been considered that, given the ethnic tensions that led to the commission of the crimes, it is important to maintain a perception of equal administration of both cases (i.e. avoiding that one case is prioritized, or perceived as being prioritized, over the other).

Over the last few weeks, the parties have been making submissions with regard to the substantive and logistical matters that need to be resolved before the trials start. On February 14, 2013, ICC Trial Chamber V conducted hearings where issues related to trial preparations were discussed. Among the submissions made with regard to trial preparations, the one made by the Registry appears to be of particular interest. In filings made in both cases on February 12, 2013, the Registry discusses a number of key logistical and financial matters that must be resolved in advance of the trial. Most matters require at a bare minimum two months (and possibly longer) to be resolved. Those logistical arrangements depend mostly on how the Court intends to organize the trials, and a decision by the Court’s judiciary is necessary before the Registry can proceed.

The core of the matter is whether the trials are to run consecutively (e.g. one week each) or simultaneously (e.g. Kenya I in the morning and Kenya II in the afternoon). The Registry’s submissions and comments made by the judges during the February 14 hearings also allude to infrastructural and human limitations. These include the limited number of courtrooms, staff constraints, and the need to call new judges in order to assign cases to two separate trial chambers (the cases have so far been handled by the same chamber). The financial implications of moving forward with splitting the cases between two chambers are considerable. Not doing so and having the cases run consecutively would cause significant delays, which in turn would also lead to a substantial expense increase.

What is surprising about this situation is that these key matters for the organization of the trials have surfaced only now, less than two months before the dates set for the trials to begin. These are issues which may reasonably take more than a couple of months to be resolved, considering inter alia that if new judges are assigned to the cases, they will need some time to get acquainted with the files. During the February 14 hearing, the judges explained that they have been liaising with the Court’s Presidency since June 2012 in respect of the possibility of constituting two chambers. While acknowledging that these are matters with considerable bureaucratic implications, it is difficult to understand why no measures have been taken for so long.

But it is not only the logistical and financial hurdles that stand on the way of the possibility of having the trials start as planned in April 2013. Defense Counsel in both cases have expressed serious concerns that they have not been provided with the material needed for preparing the cases and conducting necessary investigations sufficiently in advance. Adequate preparation of the accused persons’ defense is a crucial fair trial guarantee and also an assurance that trials will seek to uncover the truth of the events and avoid a quasi-automatic conviction of all prosecuted individuals. At the ICC, in order to prepare adequately the Defense must receive from the Prosecution all the incriminating evidence the latter intends to rely upon during trial, as well as potentially exonerating material. Given the security situation in the countries where the ICC operates and the Court’s responsibility to protect victims and witnesses, the balance between disclosure obligations and protection duties is a delicate one. This has often led to delays in disclosure and an allegedly extensive use of ‘redactions’ to conceal sensitive portions of the documents. Counsel argue that lifting those redactions only shortly before trial does not allow the Defense to have a comprehensive understanding of the case until the last minute, which impinges on the Defense’s capability to conduct investigations and prepare adequately.

These tensions and difficulties are common in ICC trials and trials before other international tribunals. However, in the Kenya cases, the Defense is arguing that preparations are further hampered by the fact that the Prosecution case as disclosed only recently presents substantial new information that had not been part of the Prosecution case as initially shaped during the pre-trial phase. According to the Defense allegations, which are confirmed by a reading of the transcripts of the confirmation of charges hearings and an analysis of the confirmation of charges decisions, the pre-trial cases were based mainly on the accounts of eight and 12 witnesses for the Kenya I and Kenya II cases respectively. In the trial cases, the Prosecution intends to present 41 witnesses in the Ruto and Sang case, and 34 witnesses in the Muthaura and Kenyatta case. To make matters more complicated, the Prosecution has desisted from calling some of the witnesses it relied upon at the pre-trial phase. But the reason for the Defense argument that the Prosecution case has ‘morphed’ is not really or not only the substantial increase in the number of witnesses, statements, and material that the Defense needs to review. With the increase of witness comes new information in support of the Prosecution’s allegations.  As in many other international crimes trials, so-called ‘linkage evidence’ to prove the accused persons’ involvement in the crimes will be crucial. As revealed by the confirmation of charges hearing and sub-sequent decision, in the Kenya I case the Prosecutor has relied on testimony indicating that the accused were present at important meetings which constituted key steps in the planning of the crimes. Defense Counsel allege that the new witnesses provide information about a substantial number of new meetings happening over a significantly larger time span, which is why meaningful additional investigations by the Defense are needed.

In filings made this week, the Prosecution contends that it has complied with the disclosure deadlines and that whenever delays have occurred, those were due to witness interference and delays in the implementation of protective measures, all of which are matters beyond its control. With regard to the alleged ‘shift’ of the cases, the Office of the Prosecutor argues that the additional level of information is logical given that the lower threshold necessary for charges to be confirmed (‘substantial grounds to believe’) and the need to provide increased contextual information to the charges at the trial phase. However, the Prosecution does not oppose postponing the trials in view of the Court’s operational constraints including the shortage of courtrooms.

In addition, the Muthaura and Kenyatta case may go back to the Pre-Trial Chamber, at least in respect of one of the accused (Muthaura). This is due to the Prosecution’s will to introduce evidence regarding the cause of killings allegedly committed in Naivasha which had not been confirmed by the Pre-Trial Chamber, as well as the emergence of information after confirmation regarding the credibility of one of the witnesses.

But beyond all the institutional, procedural and fair trial issues, lies a significantly broader and highly relevant question. Kenya is in the peak of a presidential campaign. The elections are to be held this Monday, March 4. This is going to be the first general election after the 2007 election which ignited the violence the ICC trials are all about. And here is the big elephant in the room: the two main accused in the ICC cases, Uhuru Kenyatta and William Ruto, are running together for president and deputy president respectively. And there is more. Kenyatta is seen as one of the favorite candidates and stands good chances of being elected. Kenyatta, Ruto, and the other accused have committed to continue to appear before the Court. But one cannot help but wonder whether cooperation with the Court will suffer should they get elected to the president’s office. During a presidential debates held over the last few weeks, Kenyatta and other candidates pledged not to resort to violence as a way to contest the election results as in 2007 and following previous elections in Kenya. The weeks and months following the March 4 elections will be marked by other significant political events. During the February 14 hearing, the legal representative of victims in the Kenya I case reminded the Court that, among those events, should there not be a winner during the first round, a run-off election is scheduled to the take place on April 11, 2013 (i.e. the very date of the opening of the trial against Uhuru Kenyatta).

The Kenya cases are not simple. These are cases about politicians allegedly involved in inciting violence. These are cases about a country marked by ethnic tensions and allegations of unequal distribution of resources. These are cases about a country plunged in corruption, cases involving allegations of lying witnesses and very acute security issues. These cases are very different from the ones the ICC has known so far, generally involving crimes committed by local militia in the context of an armed conflict. The Kenya cases undoubtedly require a different approach. Is the ICC ready for the Kenya cases?