David Baxter Mutekanga Bakibinga

Discretion, Disclosure and Confidentiality at the Icc: the Tension Between the Duty to Disclose and the Confidentiality Obligations of the Icc Prosecutor David Baxter Mutekanga Bakibinga

The book explores the influence the two overbearing legal systems had on the determination of the roles of the prosecutor under the Rome Statute. It goes on to examine prosecutorial independence under the international criminal tribunals. The study delves into prosecutorial discretion during the investigative stage and at the commencement of proceedings. The study focuses on the potential conflict between the duty to disclose evidence to the defence or the accused and the confidentiality obligations under agreements executed by the Prosecutor with International organizations. This issue arose in the Lubanga and Katanga cases. The tension between the court and the Office of the Prosecutor following the refusal of the UN as an information provider to allow for disclosure of its information nearly led to the failure of the Lubanga case. This led to protracted proceedings which infringed on the fair trial rights of the accused. The impasse was resolved after the UN backed down. The study posits that the Rome Statute needs to be reviewed in order to enable the Prosecutor to function with more flexibility. The study suggests areas for reform under the ICC regime.