Ocampo Four fight to tear apart gang theory

The Hague Four want their cases at the ICC dropped on grounds that the Mungiki gang and the “network” found to have been used during the post-election violence do not fit the court’s definition of organised groups. (READ: Kenyan suspects to appeal against ICC ruling)

Appeal documents filed to challenge the Pre-Trial Chamber ruling confirming the charges, show that the status of the outlawed Mungiki sect, in the case of Deputy Prime Minister Uhuru Kenyatta and former Civil Service chief Francis Muthaura, forms the core of their challenge.

In the case of Eldoret North MP William Ruto and Radio journalist Joshua Sang, documents seen by the Nation argue that the network alleged to have been headed by the MP also did not fit the International Criminal Court classification of an organisation.

The four separately filed notices on Monday at the Pre-Trial Chamber seeking leave to appeal against the ruling which committed their cases to the trial court. (READ: Uhuru, Ruto appeal on at The Hague)

They simultaneously filed separate notices to the ICC Appeals Chamber, challenging the jurisdiction of The Hague over the Kenyan cases.

Their notice of appeal will be considered by the same three-judge bench that committed them to trial — judges Ekaterina Trendafilova, Cuno Tarfusser and Hans-Peter Kaul, who gave a dissenting verdict.

The Appeals Chamber has on its bench judges Sang-Hyun Song (ICC president and presiding judge), Akua Kuenyehia, Erkki Kourula, Anita Ušacka and Daniel David Ntanda.

The appeals argue that criminal gangs or militia groups without government support, were not organised groups under ICC rules.

They argue that the Mungiki is a criminal gang that has even been banned by the government.

The Rome Statute recognises groups which conform to the “State-like organised policy” that attacks civilians.

ICC Prosecutor Luis Moreno-Ocampo argued that Mr Kenyatta and Mr Muthaura used their influence to transport Mungiki to carry out attacks on ODM supporters in Naivasha and Nakuru.

While Mr Kenyatta allegedly raised funds for Mungiki and organised a meeting at State House with President Kibaki, Mr Muthaura is said to have obtained police uniforms and an army truck to ferry sect members to Nakuru.

On their part, Mr Ruto and Mr Sang want the Appeals Chamber to block any further pre-trials or trials on grounds that the evidence indicating that they were part of a network which systematically unleashed violence to targeted civilians was inadequate.

“Without the crimes alleged having been embedded in an “organisational policy” ... the Court has no jurisdiction ratione materiae over the situation in the Republic of Kenya, including in the present case,” Mr Kioko Kilukumi, who is representing Mr Ruto, argues.

Mr Moreno-Ocampo claimed Mr Ruto led a network, deputised by Tinderet MP Henry Kosgey, which had an armed wing led by three former army generals. Mr Sang was said to have aided the network through his radio talk shows.

The four ICC suspects borrow heavily from the dissenting ruling of Judge Kaul in their arguments.

The judge argues that Mungiki and the network were not “state-like organised groups” as defined in the Rome Statute.

In the appeal notice, Mr Ruto’s lawyers argue that the three-judge bench failed to find that the prosecutor conducted shoddy investigations.

They also argue that it was wrong for the judges to allow the prosecutor not to present exonerating evidence during the confirmation of charges hearings.

Thirdly, they submitted that the judges should not have allowed Mr Moreno-Ocampo to use evidence from anonymous witnesses in addition to concealing some crucial evidence from them.

In the case of Mr Sang, his lawyer Katwa Kigen raises same issues as Mr Ruto’s defence, but adds that the Pre-Trial Chamber failed to consider the relationship between what his client was allegedly heard saying on radio and the crimes that were committed.