ICC judges urged to dismiss Uhuru, Ali plea

International Criminal Court prosecutor Luis Moreno-Ocampo and victims’ lawyer Morris Anyah have asked judges to dismiss the challenge on jurisdiction lodged by two of the suspects in Kenya’s second post-election violence case.

The two have told the Pre-Trial Chamber II that Deputy Prime Minister Uhuru Kenyatta and post-master general Maj Gen Hussein Ali erroneously applied the law when they presented their challenges at the beginning of their Confirmation of Charges Hearings.

Mr Moreno-Ocampo argues that instead of challenging the jurisdiction, the defence presents arguments that touch on sufficiency of the prosecution evidence and interpretation of the Statutes.

“Whether the evidence establishes the predicate elements of the crime, including, as here, the element of an organisational policy to commit attacks against the civilian population, is a sufficiency issue, not a jurisdictional one,” the prosecutor says in his first submission in the case since the end of the hearings on October 5.

In his submission, Mr Anyah says that Mr Kenyatta and Mr Ali’s arguments that the “precise relationship” between the Mungiki and other groups who may have been involved in the crimes has not been defined with specificity are not a jurisdictional challenge.

He argues that the defence may seek to challenge the specificity of the Document Containing the Charges on this basis, but it does not undermine the basis for asserting jurisdiction. He added that according to the prosecution evidence, there was an attack against a civilian population committed in furtherance of an organisational policy of the Mungiki.

“The relationship of other groups to the Mungiki, such as the police or political groups, is a matter that goes to the responsibility of the suspects, rather than whether the crimes meet the jurisdictional threshold of a crime against humanity,” Mr Anyah.

Mr Kenyatta and Mr Ali alongside head of civil service Francis Muthaura are facing counts of murder, forcible transfer of civilians, rape, persecution and other inhumane acts perpetrated against pro-ODM supporters in Naivasha and Nakuru during the post-election violence.

Mr Kenyatta and Mr Ali have argued before the court that it has no jurisdiction on their case as the evidence presented by the prosecution does not prove that there was an organisation policy to commit the crimes alleged.