Wednesday, 5 November 2014

'Indefinite Adjournment' or 'Deferment'?

I have read, with great interest, the transcript from the status conference in the Kenyatta case before the International Criminal Court last month. In it, the prosecution requests an 'indefinite adjournment' of the case, by which it means an 'adjourn[ment of] the case without fixing a date'. This is a remarkable request, and raises serious fair trial issues insofar as the prosecution has essentially proposed to allow the matter to drag on indefinitely without any fixed date for the start of trial, owing to insufficiencies in its own evidence. One is reminded of Kafka's The Trial:

"Deferment," said the painter, looking vaguely in front of himself for a while as if trying to find a perfectly appropriate explanation, "deferment consists of keeping proceedings permanently in their earliest stages. To do that, the accused and those helping him need to keep in continuous personal contact with the court, especially those helping him. I repeat, this doesn't require so much effort as getting an apparent acquittal, but it probably requires a lot more attention. You must never let the trial out of your sight… you can be reasonably sure the trial won't get past its first stages. The trial doesn't stop, but the defendant is almost as certain of avoiding conviction as if he'd been acquitted… Proceedings can't be prevented from moving forward unless there are some at least ostensible reasons given. So something needs to seem to be happening when looked at from the outside. This means that from time to time various injunctions have to be obeyed, the accused has to be questioned, investigations have to take place and so on. The trial's been artificially constrained inside a tiny circle, and it has to be continuously spun round within it.

The request is also notable for the suggestion that the nebulous concept of the 'interests of justice' should be tantamount to the rights of the accused:

In particular, the Prosecution submit, the interests of justice should be paramount here. I don't mean to say that the defendant's rights should be ignored for a moment, but the interests of justice should, I submit, be the most important consideration in your Honours' minds.

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