Fairness pledge as ICC judges prepare ruling on Ocampo Six

Tuesday December 27 2011

Judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser are hearing evidence to determine whether to commit MPs William Ruto, Henry Kosgey and radio presenter Joshua Sang to full trial for the killings, evictions and maiming that occurred after the disputed presidential elections of 2007.

Photos/FILE Judges Ekaterina Trendafilova (left), Hans-Peter Kaul (right) and Cuno Tarfusser are hearing evidence to determine whether to commit MPs William Ruto, Henry Kosgey and radio presenter Joshua Sang to full trial for the killings, evictions and maiming that occurred after the disputed presidential elections of 2007. 

By ERIC SHIMOLI [email protected] AND JACOB NG’ETICH [email protected]

The International Criminal Court is promising Kenyans fairness and justice as judges prepare to rule whether the six Kenyan post election violence suspects will be committed to full trial.

With just weeks remaining to judgment day, the court says judges will remain impartial in reaching a decision on whether Deputy PM Uhuru Kenyatta, Civil Service head Francis Muthaura, Postmaster General Hussein Ali, MPs William Ruto and Henry Kosgey and Kass FM broadcaster Joshua Sang have cases to answer.

The charges stem from the violence which erupted after the 2007 disputed Presidential election which ended with the power sharing deal between President Kibaki and PM Raila Odinga.

Verdict is expected within the first three weeks of January. (READ: Ocampo Six to know fate on same date)

To move the case to the next stage, Judges Ekaterina Trendafilova, Cuno Tarfusser and Hans-Peter Kaul need to only conclude that there are reasonable grounds to believe the six have a case to answer.

For Mr Kenyatta and Mr Ruto specifically who are declared presidential candidates in next year’s General Election, the judges decision will have far reaching implications.

ICC spokesman Fadi El Abdalla said: “I need to emphasize that the decisions of the Judges are still pending and we can not speculate on it now.”

Asked what message the court had for Kenyans in light of the nearing ruling, Mr Abdalla said: “Justice is being done, under the control of impartial judges, and following a fair process that guarantees fully the rights of the defence...”

The Kenyan suspects will take solace in the fact that the court only last month refused to confirm charges against Rwandese Callixte Mbarushimana who was facing eight charges of war crimes and five of crimes against humanity.

A spokesman for Mr Kenyatta, Mr Munyori Buku said: “The Deputy PM has been wrongly and unjustly accused.

“He is happy he has been given opportunity to defend himself and as a believer in the rule of law, he will see it to the end.

“He has faith in the ICC judges and he is sure that justice will be done in the end,” said Mr Buku, director of commission in Mr Kenyatta’s office.

Mr Kimutai Bosek, the lawyer for Kass FM presenter Joshua Arap Sang, said he initially saw the cases as stage-managed given that the prosecutor had ensured that the crimes are evenly distributed between the ODM and PNU.

“In crime you don’t find a balance on both sides of the suspects. You could find one side to be culpable while the other is not or have a lesser number of suspects on one side, but the balance of three suspects each raised eyebrows and indicated that there was something amiss in the way the prosecution investigated the case,” said Mr Bosek.

He said: “The threshold has now gone up. In the confirmation hearing that we concluded, the Prosecutor was expected to prove substantially that the six suspects had a case to answer.

“The Prosecutor presented what he had and we also argued our part ably,” he said. Mr Bosek said the expectation was that the court’s decision would remain judicial.

“There has been some previous accusation of the court as a political court. My hope is that their decision is judicially informed and not by criteria which is politically informed,” said Mr Sang’s lawyer.

Industrialisation minister

Mr Monari who represented former Industrialisation minister Henry Kosgey said: “The proceedings at the Confirmation Hearings clearly indicate the lack of a credible case against some of the suspects.

“In fact the proceedings laid bare the lack of investigation and the political nature of these cases.”

He said that applying local law shows that the Kenya cases ought not to proceed any further and if international justice was to be served, then it was the right time for the court to demonstrate its restraint.

“Looking forward, the sooner the decision, the better. Kenya has been put on hold, Kenya is at standstill and Kenya needs to go on,” said Mr Monari.

He said the International Criminal Court had spent considerable amount of time and resources as a result of post election violence after the Kenya Parliament failed to agree on the establishment of a local system to try perpetrators of the violence.

Mr Monari noted that it was significant that the ICC took over the cases without government or UN reference.

All the charges can either be rejected or accepted in their totality. The prosecutor can be asked to do further investigations or make amendments to his evidence.

Alternatively the judges can confirm charges against some individuals or drop some charges.

Mr Abdallah, the ICC spokesman, also clarified that ICC was impartial in its investigations and does not target any groups or countries, but individuals who are suspected to bear the highest responsibility of crimes committed.

“ICC is a judicial institution. There is no possibility to take political consideration to account when judges are deciding.

“The ICC only deals with the persons suspected of being responsible for mass crimes, and these people are not ordinary people,” he explained.

He added; “There is no prosecution against a political party, an ethnic community, the government, only individuals with the highest responsibility.”

Mr Abdallah further said investigations against the Ocampo Six were not politically investigated as he argued, the prosecutor would not be interested in fighting a losing battle if he does not have evidence against his suspects.

“If the ICC prosecutor has evidence against some people, he can ask the judges and present a case. But if he doesn’t have a case he cannot go to a losing case. That is why the prosecutor presented certain cases,” he explained.

He also corrected some of the common misperception in Kenya that the ICC was about Prosecutor Luis Moreno Ocampo. He said the court has four crucial organs and Ocampo only heads prosecution arm.

“It is the prosecution that brings the cases before the judges. Remember that only the judges have the full picture and authority to decide on the request of the prosecutor.

“Even for the summonses to appear, the prosecutor requested then the judges decided on it,” he asserted.

Mr Moreno-Ocampo’s successor, Ms Fatou Bensouda has stated that she will not take a softer approach to the cases than the combative approach that the current ICC prosecutor has adopted.

And lawyers for some of the six suspects were in agreement with the tough position taken by Ms Bensouda, arguing that her elevation to the position would not give any window of reprieve to their clients.

Mr Kenyatta, Mr Ruto (Eldoret North), Mr Kosgey (Tinderet), Mr Muthaura, Maj-Gen Ali and Mr Sang have already argued their cases before the Pre-Trial Chamber headed by Judge Ekaterina Trendafilova and the three-judge bench is set to issue the ruling on January 19, 2012.

The chamber can ask the prosecutor to provide more evidence or amend the charges if the evidence appears to establish different charges to those alleged by the prosecutor.

All decisions can be appealed when a five bench appeals chamber will deliver their decision.