This year two decisions have been eagerly awaited in the trial of the International Criminal Court (ICC) trial of Deputy President William Samoei Ruto and former journalist Joshua arap Sang.
One has been on whether the statements of witnesses who recanted their remarks or failed to appear in court can be used as evidence. The Appeals Chamber announced its decision on the matter of witness statements two weeks ago.
Attention has now turned to the other eagerly awaited announcment: Trial Chamber V(a)'s decision on the defence's "no case to answer" applications. The "no case to answer" submissions have been the subject of public interest in Kenya since early last year. This interest began after the last prosecution witness testified in the trial of Ruto and Sang in January last year.
This was before the defence had filed their "no case to answer" applications. The then anticipated motions were the subject of media coverage and political rallies. That interest rose once those motions were filed last October.
Appeals Chamber's decision
The Appeals Chamber's decision on whether the statements five witnesses gave to prosecution investigators could be used as evidence was eagerly awaited because of the impact such a decision could have on the "no case to answer" motions. On 12 February the Appeals Chamber decided not to allow those statements to be used as evidence.
The impact of the statements on the "no case to answer" applications can be gauged by what the different parties said in their submissions. In its 29 April 2015 application to Trial Chamber V(a), the prosecution had argued that those statements formed a "significant portion" of its evidence. The defence of Ruto and Sang have argued that without those statements, the prosecution has no case against their clients.
Is there a deadline for the trial chamber judges?
Now the key question is when will Trial Chamber V(a) make its decision on the "no case to answer" applications the defence teams of Ruto and Sang filed. The defence have argued in their submissions and before the chamber in January this year that they do not need to present their side of the story because the prosecution has failed to prove the allegations against their clients.
There is no deadline for the judges to make a decision on the "no case to answer" motions. There is also no precedent with which to compare when a decision is likely to be made. This is the first time an ICC trial chamber is considering "no case to answer" submissions.
In fact, even within the Court's founding law, the Rome Statute, there is no deadline by which judges have to deliver any of their decisions. The only deadline judges are required to meet is a 60-day deadline when determining whether to confirm charges against a suspect. This deadline is in the ICC's Regulations of the Court.
"Fair and expeditious" manner
The trial chamber, however, will keep in mind the provisions in Article 64 of the Rome Statute that require chambers conduct trials in a "fair and expeditious" manner.
Although Trial Chamber V(a) does not have a deadline by which it must make its decision, there is one way to gauge when the chamber may make a decision on the "no case to answer" applications. This is based on how long the chamber has taken to decide applications that raise new legal questions at the ICC as will the "no case to answer" motions.
Trial Chamber V(a) has considered prosecution applications on whether the Court can compel witnesses to appear before it. It has also been asked to decide on whether previously recorded statements of witnesses can be admitted as evidence. All these applications have raised new legal questions at the ICC. In each case, the chamber took about four months to make a decision, from the time the initial application is filed. The chamber has also considered the defence's application on whether Ruto can be excused from attending all trial hearings. This issue took the chamber two months to reach a decision.
In the case of the "no case to answer" motions, it is likely the chamber will go beyond the four-month mark, which ends this month. The material they are considering is much more than the material they have had to consider in the past.
During a status conference last July, it emerged that the judges had 1,957 pages of materials to review in the matter of whether to admit as evidence previously recorded statements of witnesses.
In comparison, for the "no case to answer" submissions, the judges will be reviewing and assessing as many as 6,300 items of evidence and as many as 51,000 pages of materials the prosecution submitted as of February last year. The information on the quantity of evidence the prosecution had submitted is contained in a 16 February 2015 decision the chamber made on a defence application for a disclosure officer.
The 6,300 items of evidence and almost 51,000 pages of materials submitted by the prosecution and disclosed to the defence are what were before Trial Chamber V(a) before the chamber received the prosecution's application asking the judges to admit as evidence the previously recorded statements of prosecution witnesses who had recanted those statements or failed to appear in court.
Together with the materials, the judges will also be reviewing the testimony of 29 prosecution witnesses. Four of those 29 witnesses recanted in court the statements they had given prosecution investigators before they testified. The Appeals Chamber ruled on 12 February that those statements cannot be used as evidence against Ruto and Sang, but it said nothing about their in-court testimony.
4 months or longer?
The volume of evidence is not the only factor that may lead to Trial Chamber V(a) taking more than four months to make up its mind on the "no case to answer" applications. Two of the judges of Trial Chamber V(a) are hearing other ongoing cases.
Judge Olga Herrera Carbuccia is a judge in the trial of former Ivorian president Laurent Gbagbo and former Ivorian cabinet minister Charles Blé Goudé. That trial began on 28 January. This was almost two weeks after Trial Chamber V(a) held a four-day status conference on the "no case to answer" motions. The hearings in the Gbagbo and Blé Goudé trial are scheduled to run until July, with short breaks in late February, May and June.
Judge Robert Fremr is the presiding judge in the trial of former Congolese general and rebel leader Bosco Ntaganda. That trial opened last September. Hearings resumed in January and are scheduled to go on until the end of February.
Another reason why it may take the judges longer to reach a decision on the "no case to answer" motions is that they are also expected to make a decision on a separate but related matter. This is on the question of whether Sang should be notified of a possible change in the ways he can be held criminally responsible.
The importance of the application is that currently there is only one way Sang can be found criminally responsible if his trial gets to the verdict stage. In a 8 September 2015 application, the prosecution requested the chamber to notify Sang that this may change to include other ways Sang can be found criminally responsible.
The application is not proposing to change the charges or the facts that were confirmed against Sang by Pre-Trial Chamber II in January 2012. Such a change would require the prosecution to follow a completely different procedure.
The prosecution has filed its application under Rule 55 of the Regulations of the Court. The prosecution has said if the chamber agrees to issue such a notice, it will be arguing that the ways Sang can be held criminally responsible under the Rome Statute's Article 25(3) should include clauses (b) and (c).
Currently Sang's individual criminal responsibility is pegged to only Article 25(3)(d). Under this provision, an individual is held criminally responsible and liable for punishment if they contributed to the commission or attempted commission of a crime by a group of persons acting with a common purpose.
The prosecution wants two other clauses added to the grounds Sang can be held criminally responsible. One, Article 25(3)(b), relates to ordering, soliciting or inducing the commission of crime. The other, Article 25(3)(c), relates to aiding, abetting or otherwise assisting in the commission or attempted commission of a crime.
In its application, the prosecution asked the chamber to make a decision on this issue before the "no case to answer" applications are filed. That did not happen. The chamber, however, did listen to oral submissions on whether such a notification should be issued during a status conference held on last October.
It is not publicly known whether the trial chamber has received further submissions on the issue, but it is possible that parties and participants have confidentially filed submissions on the issue. The question of whether to legally re-characterise Sang's individual criminal responsibility could have an impact on how long it takes Trial Chamber V(a) to decide on the "no case to answer" submission. It could also have an impact on the trial chamber's ultimate decision on the "no case to answer" applications.
This report comes from the ICC Kenya Monitor, a project of the Open Society Justice Initiative, which offers monitoring and commentary on the ICC's proceedings arising from the post-election violence that erupted in Kenya in 2007-2008.