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OTP Investigation and Prosecution Strategy
reluctant to come forward for the Defence’. 504
The Muthaura Defence thus sought an order
from the Pre-Trial Chamber to the Prosecutor
‘to refrain from making any further public
comments touching on the merits of the
present case’ or, in the alternative, when a press
statement is absolutely necessary, to clearly
indicate that the assertions made are allegations
on the part of the Prosecution. It also requested
that ‘any further contravention of the orders of
the Pre-Trial Chamber in this regard may attract
consideration of judicial sanction’. 505
On 5 May 2011, Pre-Trial Chamber II issued a
decision, rejecting the request. The Chamber
reiterated that
as a matter of principle … the
safeguarding of the proper
administration of justice and the
integrity of the judicial proceedings
requires the parties, participants and
any person involved in the proceedings,
to refrain from making public
statements or engage in any other
activity which could have an impact on
the evidence or the merits of the case
or could be perceived as showing a
predetermination of the cause pending
before the Court. 506
Although the Chamber observed that the
Defence filing raised issues of legitimate concern
to the Defence, it found that the statements
made by the Prosecutor at the 14 March press
conference did not exceed his role as Prosecutor
in the proceedings. 507 The Chamber observed
that the statements made by the Prosecutor
were not related to the crimes with which
Muthaura is charged, or those which he may
bring before the Chamber as charges, but rather
concerned ‘the position held by Mr Muthaura
504 ICC-01/09-02/11-20, para 12.
505 ICC-01/09-02/11-20, para 26.
506 ICC-01/09-02/11-83, para 6.
507 ICC-01/09-02/11-83, para 11.
at the time of the press conference vis-à-vis the
Kenyan police, while making clear reference to
the “protection [of witnesses]” and the related
“conditions of the judges” ’. 508 Taking note of the
Prosecutor’s responsibility for the protection
of witnesses during his investigations, the
Chamber found that ‘the Prosecutor’s answers
to the press have properly reflected his role in
the present criminal proceedings and cannot be
understood as prejudging the questions which
are yet to be determined by the Chamber’. 509
Similarly, in an attempt to intervene in the
proceedings as amicus curiae, 510 on 20 January
2011 Ali submitted that he suffered grave
prejudice by the Prosecutor publicly announcing
him as a suspect before a decision was made
on the issuance of Summonses to Appear. 511
Sang, in a filing on 9 February 2011, asserted
similar arguments and specifically requested
the Chamber to disqualify the Prosecutor from
prosecuting the Kenyan cases. 512 This request
was rejected because the Chamber found that it
had no competence to deal with such requests
for disqualification, which, pursuant to Article
42(8), 513 should be dealt with by the Appeals
Chamber. 514 In a decision on the Ali request
on 11 February 2011, the Pre-Trial Chamber
acknowledged the concerns expressed by Ali, but
it did not find that these concerns rendered the
proceedings under Article 58 adversarial. The
Chamber noted, however, that
508 ICC-01/09-02/11-83, para 10.
509 ICC-01/09-02/11-83, para 11.
510 Following the application for Summonses to Appear by
the Prosecution in December 2010, Ali, Ruto and Sang all
attempted to intervene in the proceedings before Pre-
Trial Chamber II as amicus curiae. Their requests were
dismissed for lack of procedural standing. The Pre-Trial
Chamber stressed that the proceedings related to Article
58 are between the Prosecutor and the Chamber only.
511 ICC-01/09-37-AnxA.
512 ICC-01/09-44-Anx.
513 Article 42(8) provides that ‘any question as to the
disqualification of the Prosecutor or a Deputy Prosecutor
shall be decided by the Appeals Chamber’.
514 ICC-01/09-47.
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