ICC Chief Prosecutor Fatou Bensouda will tomorrow release her list of witnesses against four Kenyan suspects. Meanwhile the trial judges have allowed Prosecutor Fatou Bensouda to meet her witnesses before they present their evidence.
Lawyers for Deputy Prime Minister Uhuru Kenyatta, former Cabinet Secretary Francis Muthaura, Eldoret North MP William Ruto and former broadcaster Joshua arap Sang wanted her not to meet the witnesses beforehand because they claimed it would be tantamount to "coaching".
The four Kenyans will find out tomorrow the full scope of evidence and witnesses that Bensouda will use in their trials which start on April 10 and 11. On Wednesday Bensouda is due to file a pre-trial brief, a list of witnesses and a confirmation that she has disclosed all incriminating evidence to the accused.
The four are charged with crimes against humanity arising out of the violence following the disputed presidential election on December 27, 2007.
Officially, meeting witnesses before trial is known as "witness preparation". However it is also known as "witness proofing", "witness familiarization" and "witness coaching."
Bensouda wants to meet her witnesses 24 hours before they take the stand but the defence lawyers argued that this was unfair. "After thorough consideration of the various advantages and drawbacks of the practice, the chamber concludes that it is neither practical nor reasonable to prohibit pre-testimony meetings between parties and the witnesses they would call to testify at trial," the three trial judges said.
Judge Kuniko Ozaki (presiding), Christine Van den Wyngaert and Chile Eboe-Osuji were unanimous in their decision. Eboe-Osuji gave a "partly dissenting opinion" and wanted the witnesses to be allowed "practice" their testimonies as well but Ozaki and Wyngaert expressly ruled that out.
Eboe-Osuji argued that practicing testimony can be a "sensible and quite practical way" of imbuing the witness with confidence. He said it would improve the delivery of in-court testimonies.
"The same is the case with rehearsing or practicing for any other public presentation--including counsel's own opening and closing speeches," he said.
In their majority decision, the judges rejected submissions that the Victims and Witness Unit would be sufficient to prepare witnesses.
The lawyers for Uhuru, Ruto, Muthaura and Sang had argued that "coaching" would take away spontaneity from witnesses, modify their evidence and give the prosecution undue advantage.
The judges said they were not convinced although they were mindful that witness preparation could become an improper rehearsal of in-court testimony.
"However, the Chamber is not convinced that this possibility necessitates a ban on pre-testimony meetings between parties and the witnesses they are calling, nor is it persuaded that an individual application should be required each time a party wishes to conduct a pre-testimony meeting with a witness," they said.
The judges said they have adopted guidelines to check against improper coaching of witnesses. They also said they expected that counsels will act professionally and in good faith.
In addition, the judges said the "coaching" sessions will be video recorded. If there are allegations of improper coaching, the judges will review the videos.
Bensouda's pre-trial brief tomorrow is expected to explain the prosecution's case. On Friday, the Trial Chamber V judges allowed Bensouda to extend the number of pages in the pre-trial briefs from 20 to 75 pages.
The pre-trial brief will contain a summary of the relevant evidence for each count of each witness to be relied on at trial, all other evidence to be relied upon, and how it relates to the charge proffered.
On the witness list, Bensouda is expected to include a bullet-point summary of the main facts on which each witness is expected to testify. She will indicate the estimated length of time required for each witness and the total time for the presentation of the prosecution case.
"Prosecution disclosure to the defence of all incriminatory material in the form of witness statements and any other material to be relied on at trial, and provision of all material for inspection to the defence should be completed by 9 January 2013," the Trial Chamber V said in July last year when setting the timetable leading to trial.
By Wednesday last week, Bensouda had disclosed 34 incriminating items to Uhuru and Muthaura. Bensouda has disclosed 35 items to Ruto and Sang.
She will disclose to the defence the identities of her witnesses under ICC protection on February 11. She will disclose to the defence the identities of those not under ICC protection on March 13.
Two weeks ago, Bensouda asked the court to allow her to delay disclosure of the identities of seven witnesses in the case against Ruto and Sang' beyond the Wednesday deadline. The judges were yet to rule on the matter yesterday.
Bensouda also wants to be allowed to provide summaries or to withhold disclosure when redactions are insufficient to conceal the identities of some witnesses.
For two witnesses, the prosecutor wants to only disclose their identities 30 days before the trial against Ruto and Sang' starts on April 10. She asked the trial judges to let her to disclose the identities of the other five witnesses 45 days before the trials start.