Two Kenyans accused of masterminding the post-election violence have challenged an attempt by the prosecution to alter facts in their cases at the International Criminal Court.
Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto have asked the judges in their cases not to allow the prosecution to alter their mode of criminal responsibility.
Prosecutor Fatou Bensouda wants the judges to distribute the charges of the two and former head of civil service Francis Muthaura to more than one category.
Ms Bensouda appears not satisfied with how her predecessor, Luis Moreno-Ocampo, structured the cases and is seeking to introduce new elements. If allowed, the three could now be charged with contributing, ordering, soliciting or inducing crimes committed during the post-election violence.
The victims’ lawyers have supported the prosecution’s attempt to make the adjustments, which international crimes lawyers say makes it easier to secure a conviction.
In separate submissions made on Wednesday, Mr Kenyatta and Mr Ruto argue that the requests by the prosecution are an improper interpretation of the law and it is inconsistent with the Court’s jurisprudence.
Mr Kenyatta argues that while the Prosecution submits it is sufficient to prove that he had the ability to make Mungiki contribute to the crimes, proof of a mere contribution to the crime does not reflect the jurisprudence of the Court.
“The proper interpretation of the law of indirect co-perpetration requires that the Accused (Mr Kenyatta) must have joint control over the organisation and the ability to cause the organisation to commit the alleged crimes. Not simply to contribute,” Mr Kenyatta said.
He added that the Prosecution is required to prove that two or more persons, including him, had joint control over the Mungiki.
The prosecution had argued that Mr Kenyatta had a veto power or the “capacity to hire, train impose discipline and provide resources to the subordinates” would suffice to prove one of the elements of indirect co-perpetration.
In his submission, Mr Ruto raises similar issues as Mr Kenyatta and also says that the request that the Trial Chamber gives notice to the accused that there could be changes on the classification of their crimes should be rejected.
“The fairness of the trial depends on the accused being able to investigate in advance of the trial, and confront during the trial, the charges against him in a manner which does not leave scope for surprise or the moulding of the case by the prosecution as the evidence unfolds,” Mr Ruto says.
In a move aimed at tightening her case against the three, Ms Bensouda is asking Trial Chamber V to consider distributing the charges in more than one category. The prosecutor wants the court to allow her to introduce many avenues by which the court can find them guilty of crimes against humanity.
The prosecutor in the Special Court for Sierra Leone found former Liberian President Charles Taylor guilty of aiding and abetting war crimes after similar adjustments.
If allowed, the changes would increase the chances of the prosecution securing a conviction against the accused.
Originally, the charges against the three were only be categorised as co-perpetration but Ms Bensouda believes that this is not the only way that they can be characterised. The prosecutor has told the trial chamber judges that Mr Muthaura and Mr Kenyatta “specifically directed the Mungiki to commit the crimes in Nakuru and Naivasha".
Acting with common purpose
The prosecutor claims that Mr Ruto was in charge of appointing commanders and divisional commanders and assigning them to specific areas and locations to operate in.
“The prosecution acknowledges that the accused’s criminal responsibility could equally be characterised as ordering, soliciting or inducing; aiding, abetting or otherwise assisting; or contributing in any other way to a crime committed by a group of persons acting with a common purpose,” Ms Bensouda argues.
Nairobi lawyer Ashford Mugwuku said that the prosecution was not trying to change the charges as this would require the process to start again. Instead, he said, it was trying to avoid a situation where the facts of the case were insufficient.
“They want to make the case more watertight and seal all the loopholes that may exist ,” Mr Mugwuku said.
Another international crimes lawyer, Mokaya Orina, said that re-characterisation could only happen in regard to facts and not have an effect of changing the charges or mode of charging. He added that the Appeal’s Chamber in the Thomas Lubanga case rejected an attempt by victims' representatives to seek a re-characterisation that had an effect of adding new charges.
“In line with the Lubanga case, the prosecutor will not succeed in seeking re-characterisation of facts which has an effect of changing the mode of liability. It will violate the principle of giving sufficient notice to the defence of the charges,” Mr Orina said.