Uhuru Kenyatta (photo credit: Wikipedia)

Readers of this blog will probably be aware that the Prosecutor of the International Criminal Court spectacularly dropped the charges against Francis Muthaura, co-accused to Kenyan President Uhuru Kenyatta, last month. This occurred after it was revealed that a key prosecution witness (known as Witness 4) had admitted to lying in earlier testimony and had recanted his testimony. This important piece of exculpatory evidence was not disclosed to the defence until after the confirmation of the charges hearing in January 2012, even though the admission had been made in 2010.

On the basis of the Muthaura acquittal and the fact of the non-disclosure, Kenyatta asked for the charges against him to also be dropped. The Kenyatta defence team further pointed to the fact that large swathes of prosecution evidence (including an estimated 24 of the 31 fact witnesses for the prosecution) had been gathered after the confirmation of charges hearing. In the alternative, Kenyatta submitted, the matter should be referred back to the Pre-Trial Chamber for reconsideration of the confirmation of the charges decision.

Last Friday, Kenyatta’s request was denied. Trial Chamber V held that a stay or termination of proceedings would be a disproportionate response. It also held that to refer the case back to the Pre-Trial Chamber on the basis of changes in evidence would exceed the Chamber’s statutory powers, insofar as it would essentially be exercising appellate functions over the original confirmation decision. Nonetheless, the Office of the Prosecutor did not escape censure in the decision. The majority noted its concern at:

the considerable volume of evidence collected by the Prosecution post-confirmation and the delays in disclosing all relevant evidence to the Defence.

Judge van den Wyngaert put her criticisms in even stronger terms, referring to the Prosecution’s ‘negligent attitude’. In a very strong separate opinion, Judge van den Wyngaert pointed out that the prosecution had failed to give any proper justification for the large amount of evidence collected post-confirmation, besides vaguely referring to the security situation in Kenya.

This incident is not the first time the Office of the Prosecutor has been criticised for its investigative conduct, of course. But this decision calls into question the appropriateness and effectiveness of reprimands as remedies, and whether reprimands are sufficiently punitive to deter carelessness when it comes to prosecutorial obligations.  A number of alternative sanctions may serve a greater deterrent function. For example, Caianiello has suggested that repeated violations of the disclosure obligation should, in exceptional cases, lead to a permanent stay of proceedings. But, as pointed out in the present decision, this remedy will often be disproportionate to the harm suffered. So what are the alternatives?

Certainly if a piece of evidence has not been disclosed in enough time to allow the accused sufficient opportunity to prepare his case, that evidence (or the related witness where it is a witness statement that has not been disclosed) should not be allowed as evidence in the trial record. This would follow from Article 69(4) of the Statute of the International Criminal Court, which states that the probative value and the possible prejudice to the accused will be taken into account in decisions on the relevance or admissibility of evidence.

The individual sanctioning of prosecution lawyers by notifying their native bar council of their misconduct might seem like a reasonable penalty when the lawyer in question has been repeatedly responsible for non-disclosure. However, this penalty was overturned by the Appeals Chamber in Haradinaj, on the grounds that the Office of the Prosecutor acts as a whole, and individual lawyers could not be penalised in this manner under Rule 68.

Perhaps the most reasonable solution, especially in the light of the duty incumbent on International Criminal Court’s Prosecutor to investigate exonerating circumstances equally, would be to allow open access to all evidentiary materials, save those which require a determination by the Chamber on the security of states or witnesses, in the form of a dossier. This would also relieve some of the criticisms that are often laid against prosecution teams in relation to the practice of ‘flooding’ the defence, whereby thousands of pages of documents are disclosed to the defence in advance of trial, without indicating precisely which parts are exculpatory, which means that defence teams have to analyse vast quantities of evidence within a short time frame.

These alternative courses of action, which fall on the spectrum between reprimands and dismissal of the charges, should be considered in future ICC proceedings, in order to preserve the fairness and integrity of proceedings.