Muthaura, Ali and Uhuru to take the stand at ICC
Civil Service head Francis Muthaura, Finance minister Uhuru Kenyatta and Postmaster-General Hussein Ali on Wednesday become the senior most Kenyan officials to face international legal proceedings since independence.
The three are facing charges of murder, forcible transfer of populations, rape, persecution and other inhumane acts at the International Criminal Court at The Hague.
They arise from Kenya’s post-election violence in 2007/08 in which 1,133 people were killed and nearly 600,000 uprooted from their homes. (IN PICTURES: Kenya's blood and tears)
The hearings begin at 3.30pm local time, but broadcasts will start at 4pm because of a court-imposed 30-minute delay.
The proceedings will mark one of the most eagerly anticipated event since Prosecutor is Moreno-Ocampo disclosed the list of six suspects he considers most responsible for the violence, which followed the announcement of the disputed December 27, 2007 presidential election results.
By Tuesday evening, lawyers on both sides were brushing up on their final presentations with all the suspects having arrived in The Hague after Mr Kenyatta’s team overcame a last-minute visa hitch. (READ: Uhuru law team hit by Hague visa delay)
A review of the filings by both teams reveals that a central question in the hearings will be what level of evidence the prosecution needs to file to send the case to full trial.
The issue has been a subject of dispute in the last three weeks with Mr Kenyatta’s legal team, in particular, expressing its discontent with the evidence the prosecution has disclosed.
Filings by Mr Kenyatta’s British lawyers Steven Kay and Gillian Higgins indicate that sharp exchanges between the prosecution and defence can be expected as the high-ranking trio come face to face with their accusers.
In a ruling on an application on the issue of the quality of evidence to be tabled by Mr Kenyatta, presiding judge Ekaterina Trendafilova has indicated that she agrees with the prosecutor that he should not be compelled to bring all his evidence at this stage, a decision the defence disagrees with.
In his submissions to the court Mr Kay argues: “Article 61 of the Rome Statute requires the Prosecutor at the confirmation hearing to support each and every charge with sufficient evidence to establish substantial grounds to believe that the suspect committed the crimes alleged.
“In Thomas Lubanga Dyilo, Pre-Trial Chamber I relied on the jurisprudence of the European Court of Human Rights to define the standard required to confirm the charges against Thomas Lubanga Dyilo.
“According to Pre-Trial Chamber I…‘substantial grounds to believe’ means ‘serious reasons to believe’ or ‘strong grounds for believing
Difference of opinion
The lawyer outlined his difference of opinion with Judge Trendafilova whose judgment threw out the demand for Mr Moreno-Ocampo to be forced to meet a higher evidentiary standard.
In a counter-filing, Mr Moreno-Ocampo’s side has taken the position that the pre-trial hearings are not a trial-within-a-trial and that they are only meant as a “screen to filter cases that are not sufficiently supported by evidence” and to protect a suspect against abusive and unfounded accusations. This would imply that the prosecutor can choose to hold back some of his evidence.
Mr Muthaura’s team, led by British lawyer Karim Khan assisted by other lawyers including Kenyan Ken Ogetto, has indicated that it will challenge the court’s jurisdiction over the Kenyan case while taking issue with the witnesses the chief prosecutor will be relying on.
“The defence will present both written and oral submissions and evidence in respect of its proposed jurisdictional challenge,” the team says in its filing. A similar position has been adopted by Maj-Gen Ali’s defence team, which says the prosecution’s case does not stand scrutiny.
Chief prosecutor Moreno-Ocampo has already submitted his case which outlines the reasons he identified Mr Muthaura, Mr Ali and Mr Kenyatta as having the greatest responsibility for the violence. (READ: How Ocampo plans to implicate Uhuru and group)
Although the trio are accused of having had a “common plan” to carry out attacks against anti-PNU communities, the filings by the defence teams show the trio will each fight the case on their own.
All three teams filed applications, which were granted by Judge Trendafilova, allowing them to keep the identity of their witnesses and their filings confidential.
Mr Kenyatta has indicated he will take the stand in his own defence, providing one of the great pieces of court theatre expected in this second round of hearings. (READ: Uhuru to take witness stand at ICC hearings)
The tentative schedule indicates Mr Kenyatta will testify next Wednesday. According to the chief prosecutor, the Finance minister “exercised over the Mungiki a control that amounted to the ‘control over the organisation’ and his contribution to the implementation of the common plan (to attack civilians) was essential.”
Mr Moreno-Ocampo says Mr Kenyatta facilitated meetings between powerful pro-PNU figures and representatives of the Mungiki and supervised the preparation and coordination of the Mungiki in advance of the attack.
He is also said to have contributed money towards the retaliatory attacks perpetrated by the Mungiki in the Rift Valley.
Mr Muthaura is said to have “personally led and exercised a coordinating role within the organisation” and organised a number of meetings between prominent PNU members and Mungiki members.
Mr Ali’s alleged role was to have accepted a request said to have come from Mr Muthaura to order the police not to interfere with the perpetration of the crimes by the Mungiki.
“As demonstrated by the failure of the police to respond to the crimes being committed, Ali, exercising his authority as the Commissioner of the Kenyan Police Forces, allegedly directed the police not to obstruct the Mungiki from committing the crimes.
“Likewise, Ali’s alleged contribution to the commission of the crimes was made with the awareness of the intention of the group to commit the said crimes.”
