Troubling Development in the Kenyatta Case (Updated) (Updated Again)

by Kevin Jon Heller

I cannot find the relevant document on the ICC website, but Kenya’s CapitalFM is reporting that Judge Christine van den Wyngaert, sitting in the Trial Chamber, has withdrawn from the case against Uhuru Kenyatta because of concerns about the prosecution’s behavior:

In her opinion the prosecution failed to disclose to the Pre-Trial Chamber on the credibility of witness four and disclosing new evidence after confirmation stage.

“There are serious questions as to whether the prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation. I believe that the facts show that the prosecution had not complied with its obligations at the time when it sought confirmation and that it was still not even remotely ready when the proceedings before this Chamber started,” she stated.

She further agreed with Kenyatta’s argument that the prosecution introduced evidence and witnesses that had not been disclosed before.

“I stress the concerns expressed in the decision about the overwhelming number of post confirmation witnesses and the quantity of post-confirmation documentary evidence, as well as the very late disclosure of the latter.

Wyngaert observed that even though the prosecution faced challenges it has not justified how so many witnesses were interviewed after charges against Kenyatta were confirmed.

“The Prosecution offers no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation. The mere invocation by the Prosecution of generic problems with the security situation in Kenya, without explaining how this situation affected each of the individuals involved, does not adequately justify the extent and tardiness of the post-confirmation investigation,” she opined.

However in her concurrence with the other two judges, she explained that the hitches on the side of prosecution were not weighty enough to warrant a referral to the Pre Trial Chamber or withdrawal of charges against Kenyatta.

Wyngaert was replaced by Judge Robert Fremr who was previously assigned to the Trial Division 4.

I’m not sure quite what to make of this, and it’s difficult to draw conclusions without reading Judge van den Wyngaert’s concurrence. That said, three (tentative) points. First, and perhaps most obviously, Judge van den Wyngaert’s withdrawal casts the prosecution in an extremely unflattering light. I cannot imagine that the Judge would have withdrawn unless she was profoundly concerned by the prosecution’s actions.

Second, I have serious reservations about the Judge’s decision to withdraw, given that — ironically — it clearly benefits the prosecution. If Judge van Wyngaert’s concerns were simply procedural, the prejudice to the defence might be minimal. But the CapitalFM article seems to imply that the Judge has questions about the merits of the prosecution’s case — its failure to conduct a thorough investigation in particular. (Recall that Article 54 of the Rome Statute provides that the prosecution must, “[i]In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally.”) As a result, Judge van den Wyngaert’s withdrawal may well replace a judge who is skeptical of the prosecution’s case with one more inclined to accept it. That hardly seems fair to the defence.

Third, and finally, I am not sure whether there is even a legal basis for Judge van den Wyngaert to withdraw. Art. 41(1) of the Rome Statute provides that “[t]he Presidency may, at the request of a judge, excuse that judge from the exercise of a function under this Statute, in accordance with the Rules of Procedure and Evidence.” The key is the final clause, because Rule 35 of the RPE says that “[w]here a judge, the Prosecutor or a Deputy Prosecutor has reason to believe that a ground for disqualification exists in relation to him or her, he or she shall make a request to be excused” (emphasis added). A request to withdraw from a case thus seems to require the presence of one of the grounds for disqualification listed in Rule 34 — personal interest in a case, conflict of interest, etc. Disagreeing with the prosecution’s conduct in a case is not such a ground for disqualification, although it is important to acknowledge that Rule 34 does not make the list exclusive (“inter alia“). Even so, I think it sets a very bad precedent for the Presidency to agree to excuse a judge on the ground that she has a problem with the prosecution’s conduct. That hardly seems like a ground for disqualification, no matter how liberally such grounds are construed.

UPDATE: Zach was kind enough to provide a link to Judge van den Wyngaert’s concurrence. The concurrence reinforces my point that the Judge’s withdrawal is significantly unfair to the defence, because it deprives Kenyatta of a judge who was clearly willing to question the strength of the prosecution’s evidence. Paragraph 4 is particularly revealing:

Finally, there can be no excuse for the Prosecution’s negligent attitude towards verifying the trustworthiness of its evidence. In particular, the incidents relating to Witness 4 are clearly indicative of a negligent attitude towards verifying the reliability of central evidence in the Prosecution’s case. This negligent attitude is particularly apparent in relation to Witness 4’s evidence because, as the Prosecution concedes, ‘the Office as a whole was on notice, prior to the confirmation hearing, of the inconsistencies in the account Witness 4 gave during his [second] screening’. The Prosecution offered a number of explanations for overlooking the problems with Witness 4’s evidence. However, what all these explanations reveal is that there are grave problems in the Prosecution’s system of evidence review, as well as a serious lack of proper oversight by senior Prosecution staff. Clearly, thorough and comprehensive due diligence with regard to the reliability of the available evidence is an ongoing obligation of the Prosecution under article 54(1)(a), which is as important as the collection of that evidence itself.

If I were the defence, I would try to challenge Judge van den Wyngaert’s withdrawal. Nothing in the Rome Statute expressly permits a party to challenge or appeal a judicial disqualification, but such a right would seem to be implied by Article 41(2)(b), which provides that “[t]he Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph.” The right to request disqualification should be accompanied by the right to challenge the same.

UPDATE 2: Writing for Reuters, Thomas Escritt says that Judge van den Wyngaert withdrew from the Kenyatta case because of her workload, not because of her criticisms of the prosecution. I do not doubt that Escritt’s reporting is more accurate than the Kenyan media’s, but I find it difficult to believe that there is no connection between the Judge’s criticisms and her decision to withdraw. She certainly could have withdrawn from a different case — one in which she had not savagely criticized the prosecution — instead. “Workload” strikes me as little more than a convenient excuse — and I stand behind the suggestion that the defence should challenge the Judge’s decision to withdraw. Still, it is important to acknowledge Escritt’s reporting.

18 Responses

  1. Apologies, I meant “concurrence”.

  2. Thanks, Zach!

  3. Apparently her Honour did not want to go down the radical path of first receiving the evidence, then evaluating its weight, and then making factual and legal findings. That would be novel indeed. Better by far to judge the would-be evidence before the trial hearing, and not being wholly convinced by it, recuse oneself and avoid making any determination at all.

  4. Notwithstanding that, in my opinion the argument for the accused challenging the withdrawal is a moot point. Yes, Judge van den Wyngaert apparently thinks the prosecution case is rubbish. But as an accused, would I want to subject myself to her judgment, having forced her to sit through a long trial against her will? The answer is no, for the same reason that you don’t try to force a juror who has a holiday booked to sit through a trial, even if there is a legal power to do so.

  5. As another practical matter, I also find it hard to see how the case for keeping Judge van den Wyngaert on the case could be put. If Judge van den Wyngaert has not prejudged the evidence, then there is no prejudice to the accused by allowing her to recuse herself – she is a forensic blank state just like whichever judge replaces her, and the outcome of the case could not be altered either way. But if she has prejudged the evidence, then it is both ridiculous and unethical to argue that she should take any further part in the matter.

  6. Rob,

    I think you are taking a much too categorical view. It is certainly possible for a judge to have questions about the prosecution’s case while acknowledging the possibility that the prosecution’s evidence will be stronger at trial. The ICC’s system is not purely adversarial; it has inquisitorial features, especially in the pre-trial stage. So to say that van den Wyngaert has “prejudged” the evidence does not seem accurate to me.

  7. To me, the way that the quoted passages are framed, they are not put as questions. They state conclusions, either expressly (“inconsistencies”) or implicitly (e.g. that the evidence of Witness 4 is not trustworthy or contains inconsistencies). And it is trite law to say that the tribunal of fact has to keep an open mind about the credibility of witnesses before the evidence is actually received at trial.
    However, giving her the benefit of the doubt, then as I said in my view there cannot be any “prejudice to the defence”. If she is coming to the trial with an open mind, then replacing her with another judge with an equally open mind cannot affect the outcome of the trial one iota.

  8. I should also point out what I regard as the crucial contextual fact in all this. If her withdrawal from the case is indeed due to workload, then it is of course irrelevant and can be put to one side. But if it is the result of her expressed opinion about the prosecution case, then it is quite probing. I very much doubt that she would have taken such an action merely because she had formed some  preliminary views about the strengths and weaknesses of the evidence – her conclusions must have been much more far-reaching if she felt compelled to recuse herself.

  9. Kevin,
    You are correct in your analysis that the files were not on the ICC-website (They can’t be found there, but via the link that Zach provided, you can also find the rest of the related documents: The Kenyan media seems to have another way of getting these documents. Perhaps via the same source that misinforms them on what they say or mean… In any case, one can wonder what happened to decent reporting when footnotes as seen as Trial Division numbers: see the quote in your post and p. 3 of this decision:
    However, you are completely incorrect in your assessment based on incomplete information (and someone with your knowledge of ICL should easily have understood the scale of incompleteness of information) and erroneously combined statements.
    Judge Van den Wyngaert’s concurring opinion is not appended to the president’s decision to replace Judge Van den Wyngaert (who apparently already asked to be replaced on 8 April 2013). Her comments on the prosecution’s conduct should therefore (without more) not be attributed to her request to be replaced as a judge on both the Kenya cases. Instead, her opinion  should obviously be read in conjunction with the decision it was actually appended to (see the first scribd link above). After all, isn’t that normally should be done with separate decisions (be they concurring or dissenting) for them not to be taken (completely) out of context?
    When reading both that decision (on a defence request to terminate the case against Uhura Kenyatta) and the concurring opinion by Judge Van den Wyngaert (there are two more, but only one is uploaded on scribd: , it becomes clear that she is not “question[ing] the strength of the prosecution’s evidence”. Besides the fact that the chamber in the decision (that she concurs with) says not to go into the assessment of the evidence, she makes the statement that you quote in relation to a confirmation stage prosecution witness that was later withdrawn as a witness for trial.
    Nevertheless, the decision that forms the basis of Judge Van den Wyngaert (and the rest of the bench)’s critique of the prosecution is hard and interesting to read. The prosecution (not really clear whether it is the Prosecutor herself or the prosecution’s team on that case) is reprimanded for its failure to disclose a document (related to this withdrawn witness) before the confirmation hearing.

  10. Jon,

    I did not claim that the concurrence was appended to the decision to replace Judge van den Wyngaert. But the fact that it wasn’t does not change my position that workload fails to provide a compelling explanation for her decision to withdraw from the one case about which she has significant concerns — instead of from one of the others.

    I also completely disagree with your belief that the Judge is not questioning the strength of the prosecution’s evidence. Even if Witness 4 will not appear at trial, the Judge’s concerns were in no way limited solely to that witness. On the contrary, she uses her specific concerns about Witness 4 to indict the entire OTP system for assessing the reliability of evidence. As she says, “there are grave problems in the Prosecution’s system of evidence review, as well as a serious lack of proper oversight by senior Prosecution staff.” If that statement does not evince a general concern with the evidence against Kenyatta, I don’t know what statement would.

    Thanks for the links.

  11. Hopefully, the ICC will upload the request of Judge VdW tomorrow, and that will bring more clarity (the decision on excusal indicates this is to be made public). For now, this has all the hallmarks of a mistake by the journalists.
    According to the decision replacing a judge, Judge VdW requested excusal on 8 April. It’s likely just coincidence that the decision of the Presidency came out at the same time as the decision on the defence application.
    I won’t speculate any more in the absence of all the documents, but I would point out that it  is not uncommon for judges to be replaced prior to the start of trial or confirmation hearings for reasons of workload.  One of the big challenges facing the ICC – for a variety of reasons – is a lack of available judges. To deal with this challenge, the Presidency has assigned judges engaged in other cases to Chambers when cases were being prepared, but then replaced them before the time-consuming confirmation hearing or trial with judges then available. See here for a decision replacing Judges Fulford and Odio Benito in the Bemba case: and here for a decision replacing Judge Kaul (with Judge VdW) in the Katanga case:  It’s actually surprising that so far only Judge VdW, to our knowledge, has been replaced. If the two trials are to proceed simultaneously, all three judges would need to be replaced.
    These sorts of changes mid-stream are not ideal. What would be interesting is more analysis of how these changes impact proceedings. In the Bemba case, I believe that different approaches taken between the initially composed chamber and the current chamber played a part in the judges looking to regulation 55. However, without a greater and more flexible pool of available judges, the Presidency is not left with a lot of options.

  12. I’ll answer directly to David K, because he is the last in the comments queue. Judge Van den Wyngaert had already complained very convincingly and very bitterly about workloads in general in her winter 2012 article “VICTIMS BEFORE INTERNATIONAL CRIMINAL COURTS: SOME VIEWS AND CONCERNS OF AN ICC TRIAL JUDGE” (Case Western Law Review), so her application to be excused from 8th April 2013 would at least not appear unpreceded or unmotivated.

    As to the joint critique that judges Ozabi and Wyngaert levelled against OTP, it appears to me to be more of a projection (of a certain judicial annoyance about the unpreceded and surprising deal that OTP struck with Muthaura “all of a sudden” on 11th March; tellingly enough, Karim Khan changed immediately after that stunt to the rival of co-accused Uhuru Kenyatta and his erstwhile opponent, William Ruto. Honi soit…).

    Secondly, it is a warning more than a verbal sanction. OTP has already variously and threateningly announced that they reserve the right to introduce additional and new evidence; first Sam Lowery “showed the instruments” verbally in the status conference of 18th March, then later OTP referred to it in at least two briefs.

    The trial chamber is understandably concerned about an onslaught of new evidence, hence their admonishments. Concerned they are because they know that any further adjournment (as might be necessitated by the rights of defence) would hurt the credibility of the Court, and the interests of the victims. This latter aspect is notably a concern of Chile Enoue-Osuji.

    Jurisprudence in this respect (potentially belated post-confirmation evidence) is very much in flux still, and various chambers differ in approach. Trendafilova seemed more restrictive than other judges in a recent obiter dictum, whereas the Appeals Chamber so far has remained (wisely) generic.

    The warning of presiding judge Ozaki that evidence might even – as ultima ratio – not be admitted, is not very earnest, given the Court’s obligation of an objective discovery of truth. Both Ozaki and Fremr (as before Wyngaert) will remain faithful to the ultimately inqusitorial Civil Law substructure below the Common Law surface of the trial proceedings. What the admonishment _really_ announces, is a serious appeal to OTP to explain *why* certain categories of evidence come up only now, and what is the special reason why they were blocked and inaccessible earlier.

    Kenyans know that reason. So does Muthaura. Because he *was* the one to be the gatekeeper, and to arrange the blockade of whole groups of evidence before. 🙂

  13. Sorry for my slovenly typo: the Canadian barrister of Nigerian origin is Chile Eboe-Osuji. No cavalier disrespect meant to this amazing scholar.

  14. The Judge’s request and Presidency decision have now been made public.
    As expected, the underlying reasons are related to workload, although there is something redacted. What is interesting is that in her request Judge Van den Wyngaert states explicitly that her role was always foreseen as limited to trial preparation:
    “On 30 March 2012, I was requested to accept temporary assignment to Trial Chamber V, in view of the limited capacity of judges in the Trial Division, as the newly elected judges assigned to that Division had not yet been called to The Hague. I accepted this assignment on the clear understanding that it would be limited in time and only for the purposes of the preparation of the two Kenya trials”
    The timing may have had more to do with the availability of Judge Fremr (and of funds to pay Judge Fremr – an ongoing concern with the limited resources and the number of judges extended in their terms to complete ongoing trials) than anything related to the conduct of proceedings.

  15. I should add that, while the reasons for the replacement of the judge don’t appear linked to the ongoing cases, I still think that Kevin is right to draw attention to the implications of replacing a judge during the preparation for the trial. Important issues are being decided then. Unfortunately, absent a larger pool of available judges, the Presidency will always be in a difficult spot. 

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