The judges of Kenya case one have recommended that a limited part of the upcoming trial is held in Kenya or Tanzania, in a decision that echoes the submissions made by the International Criminal Court (ICC) Prosecution and Registry on the matter.

Trial Chamber V(a) made the recommendation on June 3 following applications to have the entire trial process held in East Africa by lawyers of Deputy President William Samoei Ruto and radio journalist Joshua arap Sang. The judges have recommended that the opening session and other portions of the trial be held in Kenya, or, to a lesser degree in Tanzania. The judges’ preference for Kenya over Tanzania is because Kenyan authorities wrote to the court stating they are willing to host its proceedings while Tanzanian authorities are yet to give the court an answer.

Following the recommendation of Trial Chamber V(a), the 18 judges of the ICC are expected to meet and vote on the matter of whether some of the trial proceedings of Kenya case one shall be held outside The Hague. However, that meeting may not take place until Trial Chamber V(b), which is handling the proceedings against President Uhuru Muigai Kenyatta, makes its recommendation on a similar application about the trial venue. The judges’ meeting and vote is a requirement under Rule 100 of the court’s Rules of Procedure and Evidence.

In observations filed in February, the prosecution partially supported the application by Ruto’s and Sang’s lawyers. The prosecution proposed that only sessions, such as the opening and closing of the trials as well as those involving expert witnesses, be held outside The Hague. The prosecution asked that the rest of the proceedings, especially those involving protected witnesses, be held in The Hague for security reasons. The Registry recommended that there be only two sessions outside The Hague for only three to four weeks at a time.

In a separate decision, also delivered on June 3, Trial Chamber V(a) allowed the prosecution to add two witnesses it had previously included in its list but had had to remove their names for a number of reasons. They also allowed the prosecution to submit the transcripts of re-interviews of four witnesses to its list of evidence. This, the chamber also declared, means the defense would need more time to prepare its case. They set September 10, 2013 as the new start date. These decisions represent the first ones made by Trial Chamber V(a) since it was formed in late May to handle Kenya case one.

The prosecution application on adding five witnesses to its list and the defense application for the trial start date to be pushed back further were the subject of a May 14-15 status conference. In their June 3 decision, the judges said that they considered the prosecution application to add three new witnesses to its list as premature and said that at the appropriate time the prosecution can apply to have been them included in their list. The prosecution had applied to have the three included in its witness list in anticipation that other witnesses already on the list may choose not to testify as the trial draws closer.

Again, the prosecution was taken to task by the judges for making late disclosures to the defense.

“On another preliminary note, the Chamber is deeply concerned by both the significant volume of late disclosure in this case and the fact that at this late date, additional evidence still remains to be disclosed to the Defence,” the judges said, adding that similar considerations had made them postpone the trial to May 28 when it was originally set to start on April 10.

A separate defense application for Ruto to be given partial exemption from attending some of his trial hearings was also the subject of that status conference, but in their June 3 decisions, the judges did not say anything about that application. They, however, said they would be making a separate decision on an Article 70 investigation that the prosecution is undertaking, which was also the subject of the earlier status conference. The Article 70 matter, however, was closed to the public and media, so details of it remain confidential.

Article 70 is a provision in the Rome Statute that covers offences such as giving false testimony or evidence, bribing or threatening witnesses, threatening a court official or a court official soliciting a bribe. In this particular case, it is the prosecution that initiated the Article 70 investigations, which means the prosecution is looking into allegations against one of the accused involving threatening or compromising a witness.