Victims and judges are likely to be the major beneficiaries of the oral hearings in no-case-to-answer motions filed by Deputy President William Ruto and Mr Joshua Sang.
According to legal experts, though the no case to answer motions were filed by the accused, the oral hearings that start Tuesday will add little value to the written submissions already with the court.
“The oral hearings, in the strict understanding, adds very little value to the written submissions.
For the sake of the public and the victims, it will only demonstrate that the wheels of justice are still rolling and nothing has stopped since the prosecution closed its case,” a law lecturer at the University of Nairobi, Dr Duncan Ojwang, said.
This is because the parties cannot introduce substantial matters that were not included in the written submissions during the oral hearings.
“It will be a good forum for the defence to persuade the court why the case should be terminated but in doing so, the defence will be walking a tight rope so that they do not introduce anything new outside what has been presented in written filings and make the judges put their clients on their defence,” added Dr Ojwang’.
International law expert Mokaya Orina argues that the oral hearings next week, apart from the publicity aspect, will be helpful to the judges to get clarifications on the earlier submissions.
“The parties will not go outside their written submissions but the forum will allow them to underscore their arguments and make clarifications to the judges on various items that may not be clear to the chamber,” said Mr Orina.
Apart from clarifying the issues, he states that the oral hearings were scheduled to allow the public who may not have read the written submissions to get the gist of the arguments.
“It will also give the parties to underscore their arguments and provide clarifications. Most importantly, the oral hearings are largely for the public. Whatever the parties had to say is already with the judges who have read them and even made their summaries,” said Mr Orina.
Lawyer Haroun Ndubi also says the “oral hearing will give the parties the comfort that they have spoken in court.”
Mr Ruto is expected in The Hague on Tuesday for the oral hearings that run until Thursday.
The ICC has also scheduled a status conference on Friday to deliberate on procedural matters regarding the case going forward.
Mr Ruto’s presence in The Hague will be in keeping with the conditions the ICC set for his excusal from continuous physical presence during the case.
Among the conditions, and which are relevant in this situation, he is required to attend the trial in person for “the first five days of hearing starting after a judicial recess as set out in the regulations of the court”, and as directed by the chamber either/or other request of a party or participant as decided by the chamber.
National Assembly Majority Leader Aden Duale will lead a team of Mr Ruto’s supporters who include governors and MPs in accompanying the Deputy President to The Hague in show of solidarity.
Reports also suggest that Attorney General Githu Muigai could also be travelling.
By the no case to answer motions, the accused persons are asking the ICC to acquit them of the 2007/8 post-election violence charges.
“The defence submits that, viewed as a whole, the OTP case has ‘completely broken down’.
This is because of the collapse of the ‘Confirmation Six’ and subsequent reliance on hearsay evidence– both the core evidence of the viva voce (by word of mouth) witnesses and the R68 (Rule 68) evidence,” Mr Ruto said in his application of October 26.
According to Mr Ruto, the prosecution failed to establish the network and the common plan that was at the centre of its case.
Mr Sang argues that he was not affiliated with any of the alleged network members. Mr Sang’s lawyer Katwa Kigen also accused the prosecution of carrying out shoddy investigations.
“There have been clear shortcomings in the investigations conducted by the prosecution in order to establish the truth.
The prosecution failed to extend the investigation to cover all facts and evidence relevant to the assessment of the individual criminal liability of the accused, as it is required to do under Article 54(1)(a) of the Rome Statute,” argued Mr Kigen.
Ms Bensouda has filed her submissions opposing the Ruto-Sang position.
In it, Ms Bensouda argues that “the defence arguments in the NCTA (no case to answer) motions essentially amount to a series of speculative arguments and credibility challenges, which -individually or cumulatively – fail to provide adequate grounds to dismiss any of the charges at this juncture.”
In addition Ms Bensouda told the judges in her November 20 response that she has sufficient evidence to convict the suspects.
In the same filing, Ms Bensouda listed some powerful individuals who she argued were part of the network that operated under the direction of Mr Ruto. Some of the network members, according to Ms Bensouda were former Kanu power broker Mark Too who is alleged played a central role in the Kiambaa church attack during the 2007/8 post-election violence.
Other people mentioned by the prosecution are Jackson Kibor, Farouk Kibet (Mr Ruto’s long time personal aide), Christopher Kitino Kisorio, John K. Tanui, Mr Too, two individuals who share the name Isaac Maiyo, Samuel Ruto, Solomon Tirop, Lucas Sang, former Mt Elgon MP Fred Kapondi, Stephen Chemalan and Mr Sang.
These group, according to Ms Bensouda, formed a second-tier of the ad hoc hierarchy and as such reported to Mr Ruto.
The network members, according to Ms Bensouda, played different roles within the organisation “but all pursued one common plan – to expel Kikuyus and other PNU supporters from the Rift Valley by whatever means necessary.
They ensured that the Network had political leadership, a media platform, necessary financial and logistical resources as well as adequately trained manpower.”
“The evidence establishes that the Network – through the direct involvement of Mr Ruto and Kibor – orchestrated and directed the attack on Kiambaa with the help of local network member Mark Too.
Once again the organised pattern of the attack – including the significant number of armed Kalenjin youth involved - points to prior planning by the network,” the Prosecutor states.
According to Dr Ojwang, though Mr Ruto will be making a case why he should be acquitted, his defence team will only be restating what they had already said in the written submissions.