The prosecution has failed to demonstrate the existence of a network that planned and executed the post-election violence of 2007-2008, the lawyer for Mr Joshua arap Sang told ICC judges on Wednesday.
“If you don’t find a network, and we submit there wasn’t one, then as an international court you have no business to listen to this matter,” said Mr Sang’s lead counsel, Mr Katwa Kigen. “It would then be a matter for the domestic jurisdiction.”
Mr Kigen was making submissions on the second day of the oral hearings on the "no-case-to-answer" motion.
He argued that the ICC had no jurisdiction over the crimes alleged to have been committed in Kenya during the 2007/8 post-election violence.
According to him, the prosecution in its submissions and the evidence presented in court had failed to prove the existence of a network or organisation as contained in the charge sheet.
He said the Rome Statute did not intend the ICC to try members of illegal groups such as the mafia, gangs and political thugs.
He was responding to presiding judge Chile Eboe-Osuji’s question on whether a network has to exist for the ICC to come in.
Mr Kigen argued that the alleged crimes his client is being tried for do not fall under the purview of an international criminal jurisdiction but a domestic court.
The judge asked him whether the ICC could step in where the domestic jurisdiction was unable or has refused to prosecute what would be considered international crimes.
“My argument is, you have to find a State-like organisation to try such crimes. Otherwise, the Assembly of States Parties would need to expand your jurisdiction,” argued Mr Kigen.
However, Mr Eboe-Osuji again asked Mr Kigen whether, going by his definition of organisation policy, territories that have smaller populations but lack statehood can commit crimes prosecutable by the ICC or any other international criminal tribunal, to which Mr Kigen responded it would be difficult.
According to Mr Eboe-Osuji, the argument by Mr Kigen was academic. He also reminded the Sang defence team that even if the organisation policy was not included, there was a pending application by the prosecution to bring alternative charges based on the same set of facts.
This would be the equivalent of substituting a murder charge with manslaughter.
“We have not ruled on that,” said Mr Eboe-Osuji.
Mr Kigen told the judges that even if Mr Sang was a member of the alleged network, he was a very disloyal member who would have been charged with treason because he had openly disagreed with a key network member, Mr Jackson Kibor.
According to Mr Kigen, Mr Sang, in one show on his radio programme, he told off Mr Kibor about supporting an individual for the sake of it.
“He was espousing views that were adverse to the alleged network,” Mr Kigen said but still maintained that such a network did not exist.
RIFT VALLEY NETWORK
In the written responses to the "no-case-to-answer" motion, as well as in oral submissions, the prosecution named Mr Kibor among other prominent Rift Valley leaders as members of the network that operated under Mr Ruto to commit the violence.
Other network members, according the prosecution, were former Kanu power broker Mark Too, Farouk Kibet (Mr Ruto’s long-time personal aide), Christopher Kitino Kisorio, John K. Tanui, 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.
This group, according to Ms Bensouda, formed a second-tier of the ad hoc hierarchy and as such reported to Mr Ruto.
In his submissions yesterday, Mr Kigen also said the prosecution had failed to produce any evidence to support allegations that Mr Sang on his radio programme used incendiary words like “weeds” and “parasites” to inflame passions against the Kikuyu community.
“At least the prosecution should have produced an audio. But our starting point is, he did not utter those hate words. But even if he did so, the crimes would not fall under the jurisdiction of this court,” said Mr Kigen.
He also told the court that Mr Sang did not originate the rigging claims as alleged by the prosecution. According to the defence, talk of rigging against ODM started on December 14, 2007, yet the broadcast that the prosecution was relying on was aired on December 25, 2007.
“He only picked on information that was in the public domain and disseminated to the public, which as a journalist was his business,” said Mr Kigen.
However, he was taken to task to explain why Mr Sang would select “old news” to disseminate to his audience.
According to Mr Kigen, the December 25, 2007, broadcast was done in good faith after ODM leader Raila Odinga had addressed the media on the same.
“Mr Sang was just relaying what was said in a press statement by Mr Raila Odinga on December 25, 2007 after persistent public debate about alleged rigging in favour of PNU,” said Mr Kigen.