Pre-trial Judges at International Criminal Court on Monday confirmed charges against four of the six Kenyan suspects claimed to have played the biggest role in the 2007 2008 post-election violence that took the country to the precipice of civil war.
In a majority decision, the judges confirmed charges against Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, Head of Civil Service Francis Muthaura and journalist Joshua arap Sang.
Charges against Tinderet MP Henry Kosgey and former Police Commissioner Hussein Ali were not confirmed after the Judges found insufficient grounds for sustaining them.
Judges Ekaterina Trendafilova and Cuno Tarfusser voted to the affirmative while Judge Hans-Peter Kaul dissented.
"After having thoroughly examined and analyzed individually and collectively all the evidence presented, the Chamber, by majority, decided to confirm the charges against four of the six suspects, as will be explained later in more detail.
"Judge Kaul appended a dissenting opinion in both cases. He maintains that the ICC is not competent because the crimes committed on the territory of the Republic of Kenya during the post‐election violence of 2007‐2008 in his view were serious common crimes under Kenyan criminal law, but not crimes against humanity as codified in Article 7 of the Rome Statute," said Judge Trendafilova who read out the ruling.
"As to the criminal responsibility of Mr. Ruto and Mr. Sang, the Chamber found, on the basis of the evidence presented, that they are responsible for the charges levied against them.
"In particular, Pre‐Trial Chamber II confirmed the charges against Mr. Ruto as an indirect co‐ perpetrator with others, while it found that Mr. Sang contributed to the commission of said crimes against humanity.
"However, in relation to Mr. Kosgey, the Chamber found that the Prosecutor’s evidence failed to satisfy the evidentiary threshold required. The Chamber was not persuaded by the evidence presented by the Prosecutor of Mr. Kosgey’s alleged role within the organization.
"With respect to the criminal responsibility of Mr. Muthaura and Mr. Kenyatta, the Chamber was satisfied that the evidence also established substantial grounds to believe that they are criminally responsible for the alleged crimes having gained control over the Mungiki and directed them to commit the crimes.
"However, in relation to Mr. Ali, the Chamber found that the evidence presented does not provide substantial grounds to believe that the Kenya Police participated in the attack in or around Nakuru and Naivasha. Since Mr. Ali was charged with contributing to the crimes through the Kenya Police, the Chamber declined to confirm the charges against him."
Mr Ruto held a press conference at his Karen residence immediately after the ruling had been made, where he insisted on his innocence and said his legal team will be looking at their options.
"These allegations are and will forever be strange to me. I have been and will forever be a stranger to the allegations against me. My legal team is going to analyse the different actions we will take as a team," said Mr Ruto.
He added:" I am firmly in the (Presidential) race and to my worthy competitors let us meet at the ballot and let the will of Kenyans prevail."
William Ruto, Henry Kosgey and journalist Joshua arap Sang each faced charges of murder, deportation or forcible transfer of the people, causing serious injury and persecution based on political affiliation.
ICC Prosecutor Moreno - Ocampo accused Mr Ruto and Mr Kosgey of planning attacks against PNU supporters as far back as December 2006.
The prosecutor claimed that Mr Sang used his radio programme to collect supporters and provide signals to members of the plan on when and where to attack.
Mr Moreno-Ocampo, in his application to the court, claimed that in response to the attacks, three “prominent PNU members and/or Government of Kenya officials Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali developed and executed a plan to attack perceived ODM supporters in order to keep the PNU in power.”