100 days that may change Kenya

An anxious three months lie ahead for Kenya as judges prepare to hand down verdicts on whether International Criminal Court (ICC) Chief Prosecutor Luis Moreno-Ocampo will press crimes against humanity charges against the Ocampo Six.

The law requires that all the cases should be determined by the third week of January.

The conclusion of the hearings on Wednesday will signal the start of an important three-month period in which the six suspects who the Prosecution says bear the greatest responsibility for the mayhem that brought the nation to the brink of civil war will learn whether they will go to full trial.

In The Hague, where the Kenya case is considered the highest profile matter that has come before the court, a guessing game is under way on which way the courts will rule.

There is consensus that the defence teams have put in a strong case to try and get their clients off the hook but that the prosecution may have a large mass of evidence which they have only disclosed to the judges and which they are holding on to in preparation for the full trial stage.

Celebratory mood

“Both sides have a reason to be pleased,” says Alpha Sesay, Legal Officer for International Justice at the Open Society Justice Initiative who follows the Kenya case. “I understand the defence teams are in celebratory mood. This is understandable because they have done a very good job. I have spoken to members of the prosecution team who are equally confident. They say that a lot of people are mistaking this stage for the trial. It is too early to say which side will carry the day.”

Interviews with members of the defence teams revealed a remarkably upbeat assessment of their chances to stop the proceedings at the pre-trial stage, something which has happened only once since the Rome Statute came into force nine years ago.

“I have never seen defence teams so content and confident about a judgement as they are now,” said a lawyer in one of the teams who could not be named to avoid falling a foul of court rules.

He claimed it would take a “miracle” for the charges to be confirmed, saying the prosecution had failed to prove any link between their core charges and their clients.

But Mr Morris Azuma Anyah, who represents the victims, told the Sunday Nation this assessment was premature.

“I applied to the court to see the confidential material, which the prosecution has but did not get the nod. That means that like many others I have not seen the cards held under the table. It is in the province of the prosecutor to choose what evidence he wants to rely on at this stage. You would hope that he will rely on evidence that can pass the test of proving that there are substantial grounds to believe that the suspects were involved in the crimes. It is too early to tell which way the judges will rule.”

If the hearings conclude on Wednesday as they appear on track to, the Defence and Prosecution lawyers will have six weeks from that date to make their final written submissions.

The judges will then have two months from November 16 to render a decision, which means the outcome of the prosecutor’s case against Finance minister Uhuru Kenyatta, Civil Service chief Francis Muthaura and Postmaster General Hussein Ali will be known at the latest on January 16.

A similar timetable has been followed in the case against MPs William Ruto and Henry Kosgey and radio journalist Joshua arap Sang, who will know their fate by December 24. It is not clear whether the judges will decide to expedite the second case and issue their decisions jointly.

Much at stake

Whichever way the verdict goes, much will be at stake for the suspects, the country, the chief prosecutor and the International Criminal Court.

Mr Kenyatta and Mr Ruto hope to run for the presidency and although each has said they will still be in the race whichever way the judges rule, their campaigns will almost certainly be fatally damaged by confirmation of charges.

A verdict that dismisses the charges on the other hand, could give them enough momentum to seriously challenge and possibly overturn Prime Minister Raila Odinga’s frontrunner status.

Mr Moreno-Ocampo faces an equally anxious 100 days.

He has suffered two major setbacks in the past, with judges accusing him of flouting the rights of the defendant in the trial of suspected Congolese warlord Thomas Lubanga and ordering that the process starts afresh. In the case against Sudan’s Bahar Idriss Abu Garda, the judges attacked the Prosecution for bringing what they described as a flimsy case that should never have gone before the ICC.

The Kenya case is the highest-profile matter that he has brought to the judges. With his term expiring in June next year, he will be keen to have the charges confirmed to improve his record, which critics say is tarnished by his failure to secure a single conviction since taking office eight years ago.

The ICC is also on trial in certain respects. The institution depends on the generosity of donors that are state parties to the Rome Statute. But some have grown unhappy about the court’s patchy record since it came into place.

In February, the Economist reported the ICC “badly needs the Kenyan case to succeed, not least to stiffen Japanese and German willingness to continue contributing the largest share of its $100m-plus budget”.

A court insider told the Sunday Nation that the Kenya case was being followed very keenly within the institution.

Most of the matters being heard in the court such as the Lubanga case are in the final stages. Others such as those against the Rwandan Hutu figure Callixte Mbarushimana and the Sudan rebel leaders Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus are considered straightforward cases that may not last very long.