Ocampo dismisses appeals
ICC Chief Prosecutor Luis Moreno-Ocampo wants the appeals filed by the four Kenyan post-election violence suspects dismissed because no legal grounds have been raised. (READ: Uhuru, Ruto appeal on at The Hague)
He wants Deputy Prime Minister Uhuru Kenyatta, suspended Civil Service boss Francis Muthaura, MP William Ruto and broadcaster Joshua Sang to go to full trial arguing that all the issues raised can be determined at that stage. (READ: Ocampo dismisses appeal requests by ICC suspects)
In a point-by-point rebuttal to grounds raised by the four, Mr Moreno-Ocampo dismissed the applicants’ appeal reasons as “mere disagreements”.
He says that the suspects have erred in trying to show that the judges made mistakes by giving more credibility to the prosecution witnesses and evidence.
In the two documents filed on Friday, Mr Moreno-Ocampo tells the judges that the issues that the defence lawyers have raised can be handled at trial where they will have the opportunity to challenge his evidence.
“Thus, the resolution of the defence’s challenge at this stage would not materially advance the proceedings.
The correctness of a decision is irrelevant to an application for leave to appeal,” the prosecutor says.
The suspects argue that the judges erred in law by sending them to trial without sufficient evidence by the prosecutor.
However, Mr Moreno-Ocampo says that the judges did not reverse the burden of proof to the suspects but based their factual findings on the basis on whether the evidence presented by the prosecution met the standards for the cases to be send to trial.
He further accuses the suspects of misrepresenting the judges’ decision in their arguments when they bring out the issues they want to appeal.
He argues that the suspects confuse burden of proof with evaluation of evidence in matters concerning confirmation of charges.
The suspects have requested the Pre-Trial Chamber II to allow them to appeal against the confirmation of charges against them.
They have also filed another appeal with the Appeal Chamber challenging the decision to have them tried at The Hague.
The prosecutor says that the purported unreliability of the four prosecution witnesses is grounded only in Mr Kenyatta and Mr Muthaura’s own submissions, which were considered by the Chamber in detail and finally disregarded.
Mr Moreno-Ocampo says that there is no merit to Mr Kenyatta’s argument that the Prosecution’s reliance on anonymous witnesses affected his ability to present the case.
The prosecutor also said that there is no merit in Mr Kenyatta’s argument that he failed by not getting some of the exonerating evidence that the defence lawyers presented.
On Mr Muthaura, the prosecutor says the former civil service boss incorporates Mr Kenyatta’s submissions by reference, a practice that “has been expressly censured by the Appeals Chamber.”
Mr Moreno-Ocampo also asks the court to dismiss Mr Muthaura’s “simplistic argument” that the two judges merely relied and referred to NGO reports to corroborate other NGO reports without assessing their probative value.
He argues that the judges evaluated NGO reports in the context of other evidence offered to prove or disprove a given factual proposition.
“Muthaura’s arguments are grounded upon (i) a misrepresentation of the Majority’s Decision; and (ii) the erroneous assumption that indirect evidence is — by definition — unreliable, and its reliability cannot be bolstered by other indirect evidence,” the prosecutor says.
Legal challenge
The prosecutor argues that the Mr Ruto and Mr Sang expressly state that they do not challenge the legal principles adopted by the Pre-Trial Chamber for the purposes of evaluating the evidence, but rather the outcome of the judge’s reasoning.
He adds that this makes the issue raised by the two “actually nothing but a mere disagreement” with the Chamber’s findings.
He says Mr Ruto’s arguments about prosecution’s anonymous witnesses can be dealt with at trial.
Mr Moreno-Ocampo also argues that though Mr Sang and Mr Ruto could have legitimate and correct grievances related to the Amended Document Constraining Charges, they will have recourse before the Trial Chamber.
