Presidential aspirants Uhuru Kenyatta and William Ruto will stand trial before the International Criminal Court (ICC) over the post-election violence.
They are among four suspects who had their charges confirmed by the court based in the Dutch city of The Hague. Others are civil service head Francis Muthaura and Kass FM presenter Joshua arap Sang.
Unless the ruling by the ICC Pre-Trial Chamber II is overturned on appeal, the suspects face lengthy legal battles for their freedom.
But it was a good day for Postmaster-General Hussein Ali and Tinderet MP Henry Kosgey who were discharged for lack of evidence.
President Kibaki immediately ordered Attorney-General Githu Muigai to constitute a team of legal experts to advise the government on the way forward.
One of the thorny issues which will occupy the team will be whether Mr Kenyatta, the Deputy Prime Minister and Minister for Finance, and Mr Muthaura can continue holding their positions.
Already the civil society has called for their suspension citing a clause in the coalition agreement signed by President Kibaki and Prime Minister Raila Odinga, committing the two leaders to sack any public officer charged with crimes arising from the post election violence.
Suspended from duty
“The parties shall ensure that any person holding public office or any public servant charged with a criminal offence related to 2008 post-election violence shall be suspended from duty until the matter is fully adjudicated upon.
The parties shall ensure that any person convicted of a post-election violence offence is barred from holding any public office or contesting any electoral position,” says the National Accord.
The ICC’s majority ruling was made by Judges Ekaterina Trendafilova and Cuno Tarfusser.
Judge Hans-Peter Kaul dissented, saying the crimes did not meet the threshold of the international court. He was of the opinion that Kenya can handle the cases.
“As a result of the decisions issued today (on Monday), Mr Ruto, Mr Sang, Mr Muthaura and Mr Kenyatta are committed to trial. They will be tried before a different Chamber for the charges confirmed,” announced Justice Trendafilova.
The four suspects who watched the ruling at separate venues pledged to appeal the decision. Mr Ruto and Mr Kenyatta said they will go on with their presidential campaigns.
The suspects will not be arrested pending trial.
“This, however, absolutely depends on the accused’s adherence to the conditions contained in the summonses to appear, which continue to remain in full force. At this point, the Chamber recalls its previous warning to the Suspects that their continued liberty is subject to their non-engagement in incitement of violence or hate speech,” judge Trendafilova said.
The judges said that even though the charges had been confirmed, the suspects were presumed innocent until found guilty by a trial.
“The Chamber wishes to be unequivocal and state that Mr Ruto, Mr Sang, Mr Muthaura and Mr Kenyatta are merely accused before this court. The decisions issued today by this Chamber do not affect the liberty of the accused, which remains undisturbed,” she directed.
Justice Trendafilova said the Pre-Trial Chamber put into consideration the delicate security situation in Kenya and it hoped its verdict would help maintain stability and protect the victims and witnesses.
ICC Chief Prosecutor Luis Moreno-Ocampo had accused Mr Ruto and Mr Sang of murder, forcible deportation, torture and persecution in Turbo, Eldoret, Kapsabet and Nandi Hills towns during the post-election violence.
He alleged that the Eldoret MP headed a network, deputised by Mr Kosgey, which unleashed violence against the Kikuyu, Kamba and Kisii communities for supporting the Party of National Unity’s torchbearer Mwai Kibaki.
But Mr Ruto accused the prosecutor of relying on coached witnesses, some of whom had criminal records.
“The Chamber 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.
In relation to Mr Kosgey, the Chamber found that the prosecutor’s evidence failed to satisfy the threshold required. The Chamber was not persuaded by the evidence presented by the Prosecutor of Mr Kosgey’s alleged role within the organization,” judge Trendafilova ruled.
On Monday, Mr Ruto maintained that he was innocent and vowed to appeal the ruling “no matter how long it takes.”
In the second case, the judges found that the prosecutor had presented adequate evidence to commit Mr Kenyatta and Mr Muthaura to trial.
They face charges of murder, eviction of people, rape and other sexual offences, persecution, and other inhuman acts, which were committed in Nakuru and Naivasha in retaliation against the killings in Eldoret.
“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, as indirect co-perpetrators, having gained control over the Mungiki and directed them to commit the crimes,” said the judge.
Lack of evidence
Maj Gen (Rtd) Ali was exonerated by the judges on grounds of lack of evidence linking him to the killings in Naivasha and Nakuru.
“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,” she said.