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T H E P R O S E C U T O R v . W I L L I A M S A M O E I R U T OA N D J O S H U A A R A P S A N G

P u b l i c

D e c i s i o n g r a n t i n g t h e G o v e n u n e n t o f K e n y a l e a v e t o r e p l y

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Decision to be notified, in accordance with regulation 31 of the Regulations ofthe Court, to:The Office of the Prosecutor Coun sel for W illiam Sam oei RutoMs Fatou Bensouda Mr Karim A. A. KhanMr James Stewart Mr Kioko Kilukumi Mu sauMs Cynthia Thai Mr David Ho operMs Shyamala A lagendra

Counsel for Joshua Arap SangMr Joseph Kipchumba Kigen-KatwaMr Silas Chekera

Legal Rep resentatives of VictimsMr Wilfred Nderitu

Legal Representatives of Applicants

Unrepresented Victims Unrepresented Applicants forParticipation/Reparation

The Office of Public Counsel forVictimsMs Paolina Massidda

The Office of Public Counsel for theDefence

States RepresentativesMr Githu Muigai, Attorney General,Republic of Kenya

Amicus Curiae

REGISTRYRegistrarMr Herman von Hebel Depu ty Registrar

Victims and W itnesses Un it De tention Section

Victims Participation and Repa rations Oth ersSection

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Trial Chamber V(A) ("Chamber")i of the International Criminal Court, in the caseof The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, pursuant toRegulations 24(5) and 34 of the Regulations of the Court ("Regulations"), issues thefollowing Decision gra nting the Go vernm ent of Kenya leave to reply ("Decision").

1. On 8 April 2013, the Government of the Republic of Kenya ("KenyanGovernment") filed the "Government of Kenya's Submissions on the Statusof Cooperation with the International Criminal Court, or, in the alternative.Application for Leave to file Observations pursuant to Rule 103 (1) of theRules of Procedure and Evidence".^2. On 24 April 2013, the Chamber granted the Kenyan Government's requestto submit observations pursuant to Rule 103(1) of the Rules of Procedureand Evidence and accepted the submissions in the application as thoseobservations.^ In the sam e decision, the Cham ber directed the parties andparticipants to submit any response to the Government of Kenya'sobservations within 14 days.^

3. On 8 May 2013, the Office of the Prosecutor filed its response ("ProsecutionResponse"), ^ as did the Com mon Legal Representative for Victims("CLRV") ("CLRV Response")^ and the defence team s for M r Ruto and MrSang.7

^ Where "C ham ber" is used in this decision it refers to both the Trial Chamber V in its composition as until 21May 2013 and to Trial Chamber V(A) as composed by the Presidency's Decision constituting Trial ChamberV(a) and Trial Chamber V (b) and referring to them the cases of The Prose cuto r v. William Samo ei Ruto a ndJoshu a Arap Sang a nd The Prosecutor v. Uhuru Muigai Kenyatta, 21 May 2013, ICC-01 /09-01 /11 -745.MCC-01/09-01/11-670.^ Decision on the Govem men t of Ke nya 's application for leave to file observations pursuant to Rule 103(1) ofthe Rules of Procedure and Evidence, ICC-01/09-01/11-700.^ ICC-01/09-01/11-700, para. 3.^ Prosecution Response to the "Govemment of Kenya's Submissions on the Status of Cooperation with theIntemational Criminal Court, or, in the altemative. Application for Leave to file Observations pursuant toRule 103(1) ofthe Rules of Procedure and Evidence" (ICC-01/09-01/11-670), ICC-01/09-01/11-73 0-Conf-Exp. A public redacted version was filed on 10 May 2013.^ Victim 's Response to the Gov emm ent of Ken ya's Submissions on the Status of Cooperation with theIntemational Criminal Court, ICC-01/09-01/11-732. A Corrigendum was filed on 16 May 2013.^Defence Response to the Govemment of Kenya's Observations Pursuant to Rule 103(1) ofthe Rules ofProcedure and Evidence on the Status of Cooperation with the Intemational Criminal Court, ICC-01/09-

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4. On 24 May 2013, the Registry transmitted to the Chamber a request from theKenyan Go vernm ent seeking firstly, leave to reply the Prosecution Responseand, secondly, in the event leave is granted, an extension of the time limitspecified in Regu lation 34(c) of the Regulations to allow the rep ly to be filedwithin ten days of notification of the Trial Chamber's decision ("Request").^

5. The Kenyan Government requests leave to reply to six specific mattersaddressed in the Prosecution Response which, in its view, constitute"misrepresentations of facts".^

6. Pursuant to Regulation 24(5) of the Regulations, "Participants may onlyreply to a response with the leave of the Chamber, unless otherwiseprovided in these Regulations." Pursuant to Regulation 34, a reply isordinarily to be filed, subject to leave being granted, within 10 days ofnotification of the relevant response. However this time frame may bealtered by the Chamber.

7. The Chamber notes that although the Request was submitted after theexpiration of the 10 day time limit set out in Regulation 34(c) of theRegulations, the Chamber is exceptionally prepared to accept the Requestgiven that the Kenyan Government is neither a party nor a participant to theproceedings and, as such, may not be fully aware of the applicabledeadlines. The Chamber further notes that the Kenyan Governmentforeshadow ed in the Request that it would also be seeking leave to reply tothe CLRV Response. To date, no such request has been filed with theCham ber a nd it is accordingly not ruled up on in this Decision.

8. W ith respect to the merits of the Request, the Cham ber recalls that it is notpresently seized of any application for a ruling in respect of the Kenyan

01/11-727-Conf. A public redacted version was filed on the same day. Sang Defence Response toSubmissions by the Govemment ofthe Republic of Kenya, ICC-01/09-01/11-729.^ Registry Transmission of a document received fi-om the Govem ment o fth e Republic of Kenya, representedby the Attomey General of Kenya, ICC-01/09-02/11-754 and Annex 1. The Request was filed as a publicdocument. On 27 May 2013, the Registry transmitted a confidential ex-parte, Kenyan Govemment andProsecution only, version ofthe Request to the Chamber. ICC-01/09-01/11-755-Conf-Exp and Annex 1.^ ICC-01/09-02/11-754-Anxl, para. 9. ICC-01/09-01/11-754-Anxl, para. 2 1; ICC-01/09-01/11-755-Conf-Exp-Anxl, para. 24.

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Go vern m ent ' s com pl iance wi th i ts ob l iga tions und e r P a r t 9 of the Rom eStatute . Notwi thstanding, in the interests of comple teness of the judic ia lrecord, the Ch am be r gran ts the Ke nyan Go ver nm en t leave to f ile a reply inrespect of the s ix points ident i f ied in the Req uest .

F o r t h e f o r e g o in g r e a s o n s , t h e Ch a m b e r h e r e b y :

GRANTS the Kenyan Government l eave to f i l e a rep ly to the P rosecu t ion ' sResponse in accordance wi th pa rag rap h 8 of the p re sen t D ec is ion ;

DIRECTS the Govemment of Kenya to f i le i t s reply wi thin 10 days ofnotificat ion of this Decision.

Done in both Engl ish and French, the Engl ish version be ing authori ta t ive .

Ju d g e Ch i l e E b o e - O su j i , P r e s i d i n g

^ /^c.Ju d g e O l g a H e r r e r a Ca r b u c c ia Ju d g e Ro b e r t F r e m r

Dated 30 May 2013A t T he H a g u e , T h e N e t h e r l a n d s

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