Eldoret North MP William Ruto appears to be asking the International Criminal Court to prosecute the top contenders of the 2007 General Election for the violence that followed the outcome.
In his application that was rejected by the Pre-Trial Chamber judges, Mr Ruto said prosecutor Luis Moreno-Ocampo went against Article 28 of the Rome Statute on command responsibility.
He will, however, be free to bring up the arguments if the judges decide to summon him and the other five people named by Mr Moreno-Ocampo as key suspects.
The Eldoret North MP also appears to suggest that Mr Moreno-Ocampo is shielding President Kibaki and Prime Minister Raila Odinga by virtue of their position in government, contrary to Article 27.
“The prosecutor has adopted the methodology used by CIPEV (Waki Commission), KNCHR and other reports, that is assuming that certain people are excluded from investigations contrary to Article 27 of the Rome Statute which provides that a person’s official capacity is irrelevant with regard to the applicability of the jurisdiction of the Court including investigations for crimes, and Article 28 of the Rome Statute providing that commanders and superiors attract specific and higher responsibility,” he told the judges in his application.
He gave the judges the speech made by Mr Moreno-Ocampo in Nairobi on December 3, 2010, in which he said some persons and circumstances were excluded from the investigative preview from the scope of his investigations since he was not investigating elections.
When the ICC said it was investigating the Kenyan violence, ODM politicians insisted that the bungling of the election be investigated as it was what they said had triggered the violence.
When the prosecutor visited Kenya in December last year, Mr Odinga said: “Remember why post-election violence erupted in the first place.”
According to a report by the ICC on presentations received from violence victims, Kenyans also want President Kibaki and Mr Odinga, as leaders of the two main warring political parties, to be investigated.
But Mr Moreno-Ocampo has insisted the ICC was investigating individual criminal responsibility and not political responsibility.
The judges said Mr Ruto did not qualify to make such an application, and the Pre-Trial Chamber had already received the prosecutor’s request for summons before the application was made.
“Under the statutory framework of the Court, there is no legal basis for a person under the Prosecutor’s investigation to submit observations at the current stage of proceedings,” the judges said.
They also rejected Mr Ruto’s request to challenge the conduct of the ICC prosecutor’s investigation in Kenya. They also ruled that none of the six persons can challenge the prosecutor’s application at this stage.
“In any event, the court’s statutory provisions do not empower the chamber to prevent the prosecutor from submitting requests under Article 58 of the Statute,” the judges said in their ruling.
The proceedings triggered by the prosecutor’s application for a summons to appear against the six Kenyans “are to be conducted on an ex parte basis”.
They added that the Court’s statutory provisions do not provide the persons named in the prosecutor’s application with any procedural means “to challenge the relevance, the probative value of the evidence and information or the intrinsic quality of his investigation”.
Mr Ruto had accused Mr Moreno-Ocampo of “gross abuse” of his mandate with regard to investigations in Kenya, “resulting in grave prejudice and possible infinite irredeemable damage”.
He argued the investigations by the prosecutor are “selective, presumptuous and calculated to lead to indictment of particular pre-determined persons,” including him.
Mr Ruto also told the judges that the prosecutor contravened Article 54(1) of the Rome Statute, which requires the prosecutor to investigate and consider both incriminating and exonerating evidence equally before presenting his case.
“The Prosecutor failed to issue a notice informing the Applicant that he is a suspect and affording him reasonable time to respond and with adequate particulars of the grounds to deem the Applicant a suspect,” the application said.
The ICC prosecutor has, after naming of the six suspects, written to some asking them to provide exonerating evidence. The Rome Statute requires the prosecutor to collect both forms of evidence as he conducts his investigations.
Mr Ruto said that on November 4, the Prosecutor “unfairly, unlawfully and unprocedurally ambushed” him at an interview at The Hague informing him that he was a suspect.
He accused the ICC prosecutor of being “ostensibly influenced” by extraneous and other ulterior motives in his decision to prosecute him. He said this is evident from Mr Moreno-Ocampo’s pronouncements that “the ICC prosecutions are meant to ensure that the next general elections in Kenya in 2012 lead to “credible leader” being elected.
Mr Ruto also found fault with the prosecutor’s statement that the purpose of the intended prosecution is to use the situation in Kenya as an example to other African countries and the rest of the world to end impunity.
Mr Ruto had requested that the court allow him to make oral and written observations regarding the post-election violence investigations.
In the application, Mr Ruto requested the court to supervise the investigations and ensure they are done in accordance with the law. He also requested the judges to compel the prosecutor to conduct his own independent, fair, impartial investigations and to stop defending the reports of investigations done by others.
He also asked the judges to compel the prosecutor to investigate rather than dismiss evidence exonerating him, especially claims that certain witnesses were induced, coached and compromised to implicate him.
Mr Ruto also wanted the court to restrain the prosecutor from applying for any summons to appear or warrants of arrest.
Mr Ruto, Deputy Prime Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura, Postmaster-General Hussein Ali, suspended Industrialisation minister Henry Kosgey, and radio presenter Joshua Sang were named in December by Mr Moreno-Ocampo as the key perpetrators of the violence.