Trial judges at the International Criminal Court (ICC) have reprimanded the prosecution because of the significant new evidence they collected after the January 2012 confirmation of charges against President Uhuru Muigai Kenyatta and the their handling of evidence involving one of its witnesses.

Yesterday, the prosecution’s handling of the evidence of witness number four were detailed in the first part of this article. This second part looks at the judges’ opinions about whether there should be a limit on how much evidence the prosecution can gather after charges are confirmed against a suspect.

Presiding Judge Kuniko Ozaki and judges Christine Van den Wyngaert and Chile Eboe-Osuji noted that 24 out of 31 witnesses the prosecution will rely on to prove the facts of its case were interviewed for the first time after the confirmation of charges hearings, which were held between September and October 2011. They further noted that a large quantity of documentary evidence seemed to have been collected after the January 23, 2012 confirmation of charges decision and then disclosed late.

The judges acknowledged that the prosecution is not expected to rely wholly at trial on evidence collected during the confirmation proceedings. Judges Ozaki and Van den Wyngaert, however, are of the view that “the prosecution is expected to have largely completed its investigation prior to the confirmation hearing.” They believe that the prosecution should have conducted a more thorough investigation before September 2011. They also state that the timing, manner, and volume of disclosure of the new evidence against Kenyatta did not fully respect his rights.

Judge Van den Wyngaert had stinging comments for the prosecution in her separate four-page opinion from April 26. She stated that there were serious questions about the kind of investigation the prosecution conducted ahead of the confirmation of charges hearings in September 2011.

“In fact, I believe that the facts show that the Prosecution had not complied with its obligations under article 54(1 )(a) at the time when it sought confirmation,” she said, referring to a provision in the Rome Statute, “and that it was still not even remotely ready when the proceedings before this Chamber started.”

The judge further added that she did not find the prosecution’s use of security concerns adequate to explain the delay in investigating the new evidence it had come up with after the charges against Kenyatta had been confirmed in January 2012.

“In addition to insufficiently justifying the exceptional circumstances that meant it could not have taken these particular investigative steps prior to confirmation without unduly endangering the security of particular individuals, the Prosecution also did not offer cogent reasons for what led it to believe, prior to confirmation, that the situation of each of these persons would significantly change after confirmation or indeed that such a change actually occurred,” she said.

Judge Eboe-Osuji, however, disagreed with his colleagues and explained why in his separate opinion. He said that his fellow judges’ “pronouncements amount largely to the beginnings of drips of dicta that will presently undermine the Prosecutor’s confidence in conducting post-confirmation investigations when she sees the need.”

“The judicial enterprise is chiefly the search for the truth: in this Court it is the search for the truth about ‘unimaginable atrocities that deeply shock the conscience of humanity,” said Judge Eboe-Osuji, referring to the preamble of the Rome Statute. “The requirements of substantive justice do not then easily permit a Trial Chamber of this Court to reject the fruits of an investigation in the judicial search for the truth, mainly because of when the investigation was conducted.”

All three judges do acknowledge, however, that “the circumstances under which the Prosecution was operating were difficult and may have affected its ability to conduct a fuller investigation prior to confirmation.”

They also conclude that the most appropriate remedy under the circumstances “consists of providing the Defence with further time to conduct its investigations and to fully prepare for trial in light of the new evidence.”

In conclusion, the judges reprimanded the prosecution for failing to disclose in good time to the defense the affidavit of prosecution witness number four. They also directed the prosecution to review its case file and certify it has done so by May 21.

The judges asked the defense to submit by May 13 its observations on how much more time it will need to prepare for trial.

They also gave the prosecution a May 6 deadline to file an updated version of its Document Containing Charges (DCC) to reflect the withdrawal of charges against Kenyatta’s former co-accused, former Public Service Chief Francis Kirimi Muthaura. The judges requested that the prosecution file an updated pre-trial brief by May 6 as well.

On the same day Trial Chamber V’s issued its decision, the Presidency of the ICC announced it had accepted Judge Van den Wyngaert’s request to be excused from her duties as a trial judge. In her request, the judge noted that her appointment in March last year was supposed to temporary, and now her workload as a pre-trial judge had increased. Judge Van den Wyngaert, who works primarily as a pre-trial judge, was assigned as a trial judge in the Kenya cases while the ICC was in transition with a new group of judges joining the court and outgoing judges whose terms had expired concluding their cases. Judge Robert Fremr has been appointed as Van den Wyngaert’s replacement.

Judge Fremr has 23 years’ experience as a judge in the Czech Republic, rising to the Supreme Court there. He worked as a judge at the International Criminal Tribunal for Rwanda for six years before joining the ICC last year.