Call to try accused vindicates Ocampo’s office

The International Criminal Court (ICC) on Monday confirmed each of the two Kenyan cases before it, committing William Ruto and Joshua Sang to trial for crimes against humanity in the first case and Uhuru Kenyatta and Francis Muthaura in the second one.

The court declined to confirm the charges against former Industrialisation Minister Henry Kosgey, in the first case, and former Police Commissioner Hussein Ali, in the second case.

The court identified the legal responsibility that was incumbent upon it during the confirmation hearing which was twofold: first, to determine whether there were “substantial grounds to believe” that the crimes charged were committed, and, secondly, whether the suspects were responsible for those crimes.

The court, thus, clarified that it was not making a determination on the guilt or innocence of the suspects.

On the first question for its determination, the court decided that in respect of each of the two cases, the prosecutor had established substantial grounds to believe that the crimes against humanity of murder, deportation or forcible transfer and persecution were committed resulting in the death of hundreds, and the displacement of thousands of civilians from Turbo town, the greater Eldoret area, Kapsabet town and Nandi Hills.

While the court made the finding that Ruto and Sang were responsible for the charges, it absolved Kosgey on the grounds that the evidence failed to satisfy the requisite evidentiary threshold.

The court decided that Kosgey had suffered prejudice as a result of the non-disclosure by the prosecutor of certain dates related to a number of meetings that he allegedly attended, which were essential for his defence and for the finding on his criminal responsibility.

In relation to the second case, the court found substantial grounds to believe that between January 24 and 28, 2008, there was an attack against the civilian residents of Nakuru and Naivasha perceived as supporters of the Orange Democratic Movement, in particular those belonging to the Luo, Luhya and Kalenjin ethnic groups and also that the attack resulted in a large number of killings, displacement of thousands of people, rape, severe physical injuries and mental suffering.

This evidence, in the view of the court, established grounds to believe that the crimes of murder, deportation or forcible transfer, rape, other inhumane acts and persecution were committed.

A number of observations can be made on the decision of the court.

First, this was a majority, rather than a unanimous decision. Only the presiding judge Ekaterina Trendafilova and Cuno Tarfusser supported the decision.

As he had done during other stages of the Kenyan cases, Judge Kaul gave a dissenting opinion in relation to both cases.

He maintained that the ICC was not competent because the crimes committed, although serious crimes under Kenyan criminal law, did not constitute crimes against humanity as codified in article 7 of the Rome Statute.

Legally, where a bench of judges is unable to agree, as in this case, the majority view becomes the official decision of the court.

It would, however, be interesting to see the reasoning for the dissenting opinion. This will provide a psychological boost that an appeal against the decision of the court may find favour with the appellate chamber.

Given the fact that he had taken this same view when the Pre-trial Chamber issued its decision on the application by the prosecutor for permission to commence investigations on Kenya, it was not unexpected that Judge Kaul would take the line he took on the confirmation.

What was possible, but which did not materialise, was for one of the remaining judges to join him in this view which would have led to the dismissal of the Kenyan cases.

Secondly, the grounds for declining the charges against Kosgey in the first case, and Ali in the second one are of interest.