The International Criminal Court (ICC) prosecutor Fatou Bensouda has started the process of disclosing the evidence she holds against Kenyan lawyer Paul Gicheru in the witness-tampering charges he is facing.
The prosecutor has disclosed to Mr Gicheru an initial record of confidential '148 items' ahead of the March 15, 2021 deadline for filing of written arguments in place of open-court confirmation-of-charges hearings.
The record of 'incriminating and potentially exonerating materials' is classified as confidential as it contains information which could identify witnesses if disclosed to the public.
A notice to the Pre-Trial Chamber indicates that the disclosure to the Defence is a prior practice by the Office of The Prosecutor to keep the Chamber informed of the execution of its disclosure obligations.
The development comes amid attempts by the court's Office of Public Counsel for the Defence (OPCD) to have the process of Mr Gicheru's trial start afresh with a new chamber composed of three judges instead of the current one.
The OPCD has lodged an appeal against the hearing of the case by a single-judge bench at the pre-trial stage.
Filing of the appeal means Mr Gicheru, who appears to be in a rush to have the case against him determined expeditiously without any delay, may stay longer at detention as the process of his trial is likely to start afresh.
While granting OPCD authourity to file the appeal, Pre-Trial Chamber judge Reine Adélaïde Sophie Alapini-Gansou said the move will allow the Appeals Chamber to determine whether the basis for the current proceedings is legally sound.
The appeal, which will be heard by Appeals Judge Howard Morrison (from United Kingdom), will establish legal certainty in the proceedings of the case.
Kenyan lawyer Paul Gicheru makes his first appearance before the ICC on November 6, 2020, before Judge Reine Adélaïde Sophie Alapini-Gansou of Pre-Trial Chamber A.
Photo credit: Pool | AFP
"This will provide legal certainty as to the legal framework of such proceedings and will avoid the need to divert resources to this question in the context of fast-paced proceedings. The Chamber is not persuaded by the argument of the Prosecutor that granting leave to appeal will delay the proceedings to the detriment of Mr Gicheru," ruled pre-trial judge Alapini-Gansou.
The OPCD is representing another Kenyan lawyer, Phillip Kipkoech Bett, who is being sought for interfering with the court's witnesses.
In its appeal, OPCD is challenging the finding of judge Alapini-Gansou, dated December 10, 2020, that the court's Provisional Rule 165, which allows formation of a single-judge chamber, is applicable in Mr Gicheru's case.
The rule was introduced by the ICC Judges acting in plenary on February 10, 2016 but it is yet to be formally adopted, rejected or ammended by the Assembly of State Parties (ASP).
According to OPCD, the Pre-Trial chamber composed of Judge Alapini-Gansou alone is incompetent and has no legal basis.
Through lawyers Xavier-Jean Keïta and Marie O’Leary, the OPCD says the rule cannot be used until adopted by the ASP.
"The application of this rule causes “detriment” to the defendants (Gicheru and Bett) in this case by denying (them) certain provisions of the Rome Statute afforded to other defendants before the Court. They would have their case heard by one judge instead of three. They would be denied the opportunity to make interlocutory appeals and they would not benefit from having sentencing proceedings separate to the trial proceedings," the OPCD stated.
Mr Gicheru is accused of committing offences against the administration of justice in or around 2013 in Kenya consisting of corruptly influencing witnesses of the prosecution who were to testify against Deputy President William Ruto.
