The Raila question at ICC

Prime Minister Raila Odinga’s name has been mentioned at least three times at the International Criminal Court hearings at The Hague with strong indications by defence lawyers that they will seek an explanation why he was not presented before court.

In their submissions, lawyers for Eldoret North MP William Ruto and Kass FM presenter Joshua Sang accused ICC Prosecutor Luis Moreno-Ocampo of ignoring witness testimonies touching on Mr Odinga. 

“Witnesses have said that they recognised Raila Odinga as the ODM leader and that he funded the presidential campaign in which he was a candidate. However, no effort has been made to bring him before this court,” said Mr David Hooper for Mr Ruto.

Mr Moreno-Ocampo is on record as saying that he had no evidence linking President Kibaki and Mr Odinga with the violence.

This was one of the key highlights of the first three days of the confirmation of charges hearings that recessed on Saturday to continue Monday.

Probably the most dramatic development in the three days were the allegations that Mr Ruto recruited retired army commanders Augustine Cheruiyot and John Koech and former GSU boss Samson Cheramboss to execute attacks during the 2007-8  violence. Mr Cheramboss denied the allegations in his testimony on Saturday. (READ: Former security chiefs ‘led’ attacks in Rift Valley)

Mr Ruto’s defence will most likely be seen as an extension of his political wars with Mr Odinga.

The Eldoret North MP and ODM deputy leader has fallen out with Mr Odinga for whom he campaigned in the ill-fated 2007 election from which the ICC proceedings arose.

Accusations

The two have expressed interest in the presidency, with Mr Ruto accusing the PM of using the ICC to eliminate his opponents ahead of next year’s General Election.

Deputy Prime Minister Uhuru Kenyatta, another presidential contender who is also facing accusations of crimes against humanity at the court, also blames Mr Odinga for his predicament.

The PM has laughed off the accusations.

The defence lawyers appeared to be adopting the line that as the ODM leader, Mr Odinga was at the top of the hierarchy of  Mr Ruto’s political organisation.

Mr Ruto’s lawyers, Mr Hooper and Mr Kioko Kilukumi, told the ICC Pre-Trial chamber that the choice of suspects was largely motivated by political considerations.

Mr Moreno-Ocampo alleges that Mr Ruto and Tinderet MP Henry Kosgey commanded a network including a military wing that carried out systematic and widespread attacks on Kikuyus, Kisiis and Kambas during the post-election violence period. 

“We have evidence to demonstrate that members of the network knowingly and intentionally killed perceived PNU supporters,” the prosecution has said.

But Mr Sang’s lawyer, Mr Joseph Katwa Kigen, accused the prosecutor of presenting contradicting models of hierarchy in his evidence.

“I only wish to say the court should kindly notice that the prosecutor has brought two contradictory fashions of the hierarchy. These are a hierarchy which escalates, and at its apex is Kenya’s Prime Minister as its overall commander,”  Mr Kigen said.

Earlier, Mr Kilukumi said: “The evidence that has been gathered by the prosecutor will show a very well-drawn hierarchical system. And at the top of that system, you will find the name repeatedly of Raila Odinga. You will repeatedly see that in the enormous statements that he provided finances.

“Then the person who would bear the greatest responsibility would be the ultimate person to whom all this was being reported to. If he did not believe that portion, why did he believe the other portion? These are the issues that we’ll be raising during this confirmation hearing.”

Mr Cooper said that their interest was not to implicate Mr Odinga but only point out that the prosecutor did not appreciate certain forms of evidence.

Further, the lawyers indicated that they will seek the prosecutor’s explanation as to why he did not pursue evidence that Mr Odinga provided money for campaigns.

But Nairobi lawyer Paul Mwangi described the Odinga question as a “dangerous and counter-productive line of defence”.

Mr Mwangi said the argument was a suggestion that the Prime Minister was part of a political conspiracy which was not the prosecutor’s interest. He said Mr Moreno-Ocampo was pursuing a criminal conspiracy.

“The suspects cannot have their cake and eat it,” said Mr Mwangi. “They should either explain that they were not party to any criminal conspiracy with anybody, including the PM, or accept that they were and argue that other participants have been left out.”

The lawyer said the defence lawyers’ argument is never exonerating and could in fact be interpreted to mean admission of liability. He said that the defence teams sounded as though they wanted to evoke the Nuremburg defence which is highly discredited  in international criminal tribunals.

The defence, rooted in the famous military trials at the German city of Nuremburg after World War II, transfers responsibility of alleged crimes to superior commanders or authority.

“That strategy might prove useful for local politics but devastating in international criminal law,” he said.

Mr Mwangi wondered what would the implications be if such a defence strategy were adopted in the PNU case in which President Kibaki’s allies and civil servants are alleged to have committed similar crimes.

Mr Odinga’s ODM is accused of calling for mass action, which some politicians have blamed for the 2008 killings and destruction of property.

However, human rights lawyer Maina Kiai has dismissed this argument.

“Mass action is not a crime and never will be. In fact, it is a right guaranteed by our new Constitution and also by international law,” he argues.

“Mass action is not a call to violence. Mass action is not saying ‘destroy and demolish’. Mass action is simply peaceful protest.”

Mr Kiai thinks that had peaceful protests been allowed in late 2007 and early 2008 Kenya  would have suffered less violence.

“Mass action is being called a crime by those who fear being held accountable for their own real crimes. So we must not succumb to purely political propaganda that wants to equate calls for mass action with criminality.” 

In the three days of hearings at The Hague, arguments and witnesses testimony revealed what the defence line might be.

First, there was a strong argument by the three suspects that Mr Moreno-Ocampo did not investigate evidence that could clear the suspects.

Mr Hooper said that evidence against Mr Ruto was based on “a flawed investigation and over-reliance on a handful of anonymous witnesses”.

The defence teams seemed determined to persuade the court that the prosecutor conducted no independent  investigations. The lawyers also presented witnesses who claimed the suspects were not in the locations where they are alleged to have committed the crimes.

Thirdly, the suspects seem keen to persuade the court the violence was not planned as alleged by the prosecutor.

Prosecution lawyer Cynthia Tai on Friday insisted that the violence was planned.

“The network took advantage of the existing land disputes and used the elections as an excuse to evict Kikuyus from Rift Valley,” the prosecutor said.