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

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website, but Kenya’s CapitalFM is reporting that Judge Christine van den Wyngaert, sitting in the Trial Chamber, has withdrawn from the case against Uhuru Kenyatta because of concerns about the prosecution’s behavior: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.