The differences over possible International Criminal Court (ICC) hearings in Nairobi among the six Kenyans facing charges at The Hague has illustrated the individual defence strategies among them.
Former Police Commissioner Hussein Ali says it is questionable the government can quickly create and maintain the kind of environment that would safeguard a speedy and fair trial.
He says since the government has appealed the court’s decision on admissibility of the case, the defence is unaware of the government’s position on the matter and its ability to assist in conducting proceedings in Nairobi.
“Without a proper understanding of the government’s likely position on this matter, and in order not to expose these proceedings to delay, the defence of General Ali prefers that the confirmation hearings be conducted at The Hague,” his submission reads.
Mr Ali has urged the judges to convene a status conference to discuss the impact the relocation of the confirmation hearings would have on his right to a speedy and fair trial, as well as the practicalities involved in co-ordinating such hearings in Kenya.
On the other hand, Civil Service chief Francis Muthaura has proposed that the hearings be held in military barracks should the judges transfer their sitting from The Hague to Nairobi.
In the alternative, Mr Muthaura has proposed Arusha in neighbouring Tanzania.
Mr Muthaura told the judges that he would not support the proposal that the hearings be held in Kenya unless the ICC and the government are able to adequately provide for the safety and security of the victims and witnesses.
“Possible safeguards could include consideration of holding proceedings in a military base or other protected zone identified by the court.
It is important that safeguards be put in place to ensure that victims, witnesses, suspects, the judges and court staff, as well as the public do not have to pass the gauntlet of highly charged and organised protesters,” Mr Muthaura told the judges in a document filed in court by his lawyers.
He was responding to a request by the three-judge bench that parties to the 2008 post-election violence cases at The Hague present their opinion on whether the hearings scheduled for September could be held in Kenya.
The observation by Mr Muthaura, who is a key figure at the Office of the President appears to lend credence to fears by Prosecutor Luis Moreno-Ocampo that the government cannot offer adequate security if the hearings were to be held in Kenya.
The same sentiments are shared by victims of the violence who insist there could be a recurrence of violence if the hearings are to be held in Kenya. They further argue that potential witnesses are likely to be intimidated.
In his submission, the prosecutor says Kenyan authorities are not committed to providing adequate security for witnesses and the ICC judges and staff were likely to be accorded the same treatment.
He tells the judges that during a visit to Kenya, United Nations Special Rapporteur Philip Alston reported that Kenyan intelligence officers attempted to obtain the list of individuals he was meeting.
“NGOs and other groups were harassed for information about schedule and details of the visit; persons were harassed by State officers after meeting with Mr Alston, causing some to leave the country and others to hide; and human rights defenders were killed within two weeks of the visit,” Mr Moreno-Ocampo has told the ICC judges.
He added that these events raise significant concerns about the safety of court staff in a high visibility proceeding.
Prof Alston was in the country to conduct investigations on extra-judicial killings.
A confirmation of charges hearing is held to determine if there is sufficient evidence to believe a suspect committed the crimes he is charged with. If the charges are confirmed, the Pre-Trial Chamber commits the person to a Trial Chamber, which conducts the next phase of the proceedings — the trial.
The confirmation of charges hearings will be held on September 1, for Mr William Ruto, Mr Joshua Sang and Mr Henry Kosgey, and on September 21, for Mr Kenyatta, Mr Muthaura and Mr Ali.
Mr Muthaura’s suggestion that the hearings be conducted in Arusha also appears to be supported by former Industrialisation minister Henry Kosgey, who said local trials were “desirable and in the interest of justice”.
Mr Kosgey says if the judges find it not desirable to have the trials in Kenya then they can be held in any other country within East Africa.
Deputy Prime Minister Uhuru Kenyatta argues that the law safeguards his right to have the confirmation of charges hearing held within a reasonable time and, therefore, expects no delays.
“The venue for the proceedings is determinant on the scheduled date of the confirmation hearing being effective and in such circumstances a change of venue which delays those proceedings would be unacceptable...,” Mr Kenyatta says.
Eldoret North MP William Ruto and radio presenter Joshua Sang have on the other hand raised concern over Kenya’s capacity to handle such sensitive and high profile trials, instead favouring The Hague.
In a joint submission, they argue that they already have a team — counsel and legal assistant — based at The Hague and relocation to Kenya would not be to their advantage.