The accused in both Kenya cases have submitted applications to move the venue of their trials from the International Criminal Court (ICC), which is based in The Hague, the Netherlands, to either Tanzania or Kenya. It is unlikely these applications will be granted in their entirety, however, the court may decide to have part of the trials held in Arusha, Tanzania depending on logistical, financial, and other considerations.

The likelihood of the entire trial proceedings of President Uhuru Muigai Kenyatta, Deputy President William Samoei Ruto, and radio journalist Joshua arap Sang being held in the East Africa region is remote because the venue preferred by most parties, the International Criminal Tribunal for Rwanda (ICTR) in Arusha, has wound down most of its activities and is unlikely to meet all the requirements for the Kenya cases at the ICC.

The ICTR has been absorbed into a new United Nations judicial body called the Mechanism for International Criminal Tribunals because all ICTR trials have concluded or been transferred to various national jurisdictions. The tribunal is now left with 17 appeals and unexecuted warrants for three individuals. The Arusha International Conference Center, which has been the seat of the tribunal since it was formed in November 1994, is home to the Arusha branch of the Mechanism for International Criminal Tribunals. For the Kenya cases at the ICC, the issue is not just facilities but services, such as witness protection, which the ICTR has scaled down considerably. Thus, it is unclear whether the ICTR would be able to accommodate the needs of the ICC.

One possible scenario is that the trial judges recommend to the Presidency of the ICC that some sessions of the Kenya cases be held in Arusha. This would be in line with the recommendations of the ICC Registry and Office of the Prosecutor (OTP). The Registry has suggested that the proceedings away from The Hague take place in only two sittings of three to four weeks at the most. ICC Prosecutor Fatou Bensouda has suggested that because she is concerned about the security of witnesses, the court should consider holding just the opening and closing statements and testimonies of the accused and international experts in Arusha.

The Ruto and Sang trial is scheduled to start at the end of May, which leaves little time for the Registry to prepare in case the judges want to move some sessions of the trials to Arusha. When the Registry was asked for its observations on whether it is possible to arrange for the accused to participate in their hearings remotely from Kenya, the Registry noted that it would take them at least two months to set up an appropriate arrangement for a video link between The Hague and Nairobi. It follows that even for some sessions to be held in Arusha, the Registry would need some lead time to organize everything, which in the case of the Ruto and Sang trial does not seem possible.

Another important factor in deciding the trial venue will be the judges’ own schedules. All the judges of Trial Chamber V are also adjudicating other cases at the ICC, and those trials are all taking place at The Hague.

In their applications, lawyers for the accused invoked Articles 3 and 62 of the Rome Statute that allows for the relocation of ICC proceedings. They also referred to Rule 100 in the ICC’s Rules of Procedure and Evidence, which sets out the procedure for a change in venue, in their requests that the trial move to either the ICTR’s facilities or an unspecified venue in Kenya.

A further dimension to this issue has developed since the applications and responses were filed, with Kenya’s Supreme Court confirming on March 30 the election as President and Deputy President of Kenyatta and Ruto respectively. Kenyatta faces five counts of crimes of humanity for his alleged role in violence that followed the 2007 presidential poll and nearly tore apart Kenya. Ruto faces three counts of crimes against humanity for his alleged role in that violence.

The issue of venue first came up in May last year when lawyers for Kenyatta and former Public Service Chief Francis Kirimi Muthaura asked Trial Chamber V judges to consider such a move. They made the request in submissions filed ahead of a June status conference the judges had called to discuss the trial date and a timetable for the prosecution to make full disclosure of their evidence, among other things. In those submissions, in what is referred to as Kenya case two, Kenyatta’s lawyers stated they wanted the trial moved to Kenya. Muthaura’s team said Arusha or Kenya would be suitable.

Trial Chamber V rejected those submissions in November 2012, without prejudice, stating that the requests should be directed to the Presidency of the ICC, which is mandated to make such a decision. The following December, the defense for Muthaura applied to the Presidency of the ICC to have his client’s trial moved to either Arusha or Kenya. The Presidency in response directed Trial Chamber V to get the views of the parties involved in Kenya case two on what their preferred trial venue would be. Since then, however, Trial Chamber V has ordered the charges against Muthaura be withdrawn because the sole witness who made direct allegations against him was compromised.

In January this year, the defense for Ruto and Sang also applied to the Presidency to change the venue of their trial. Until January, neither Ruto nor Sang had indicated that they wanted their trials held away from The Hague. Their application was in response to Muthaura’s submission and the orders the court made flowing from that application. As in the Kenyatta and Muthaura case, the Presidency then ordered Trial Chamber V to seek the views of other parties in the Ruto and Sang case on where they would prefer the trial to be held and make recommendations to the Presidency.

The defense application on behalf of Ruto and Sang noted that “the Trial Chamber has not sought the views of any party in the Kenya 1 case. Nevertheless, the two cases are inextricably linked in terms of their listing and it would be impractical to have the two trials heard in different places as far apart as The Hague and East Africa.”

They argued that holding the trials at The Hague would disrupt their clients’ private and public lives, “which would be deleterious to their physical, psychological and economic well-being.” The prosecution had indicated in submissions filed on May 28 last year that they expected to take 12 months presenting their case against Ruto and Sang and a similar period for the Kenyatta case.

“In the case of Ruto who holds public office, and as a matter of public record, is aspiring for higher office, it would also mean taking him away from exercising his public duty,” the lawyers stated in their application filed on January 24, about a month and a half before Ruto was declared Deputy President. “A change of venue, on the other hand, would mitigate those disruptions and costs to the accused without detracting from the smooth running of the trial.”

Defense lawyers also argue that holding the trial anywhere in East Africa will help all involved to better understand the geographical and social context surrounding the case.

“It is well documented that conducting trials in the region where such crimes were allegedly committed greatly assists entrenching the legacy of the court,” Ruto and Sang’s lawyers stated in their application. “In the present context, it should give the people of Kenya a sense of ownership of the judicial process and should render the proceedings more directly relevant.”

Kenyatta’s defense lawyers highlighted the law allowing the court to elect where it will sit for trial and stated that their client would respect any order of the court concerning the trial venue, without giving any preference. This ambivalence contrasts with the clear preference stated in their submission in May last year that their client wanted Kenya to be the venue of his trial.

Tomorrow, the second part of this article will look in detail at the submissions of the prosecution, victims’ lawyers, and the Registry.