Mr Joshua Sang’s lawyer Wednesday accused the International Criminal Court of putting on trial the entire Kalenjin community rather than just two individuals.
Delivering opening submissions in the ICC trial chamber yesterday, Mr Katwa Kigen dwelt on the evidence to be presented by prosecutor Fatou Bensouda that he charged seeks to criminalise Kalenjin circumcision, marriage, initiation and other innocent cultural rituals by depicting them as preparations for ethnic violence.
Mr Kigen said that despite Ms Bensouda’s constant assurance that the case seeks to apportion individual criminal responsibility out of Kenya’s episode on post-election violence, her entire case, as seen from the opening statements and pre-trial briefings was grounded on criminalisation of Kalenjin cultural practices and traditional institutions, as well as prominent and respected individuals who had all been lumped together as part of a network driven by Mr Sang’s co-accused, deputy president William Ruto, allegedly dedicated to violent eviction of non-Kalenjin, especially the Kikuyu, from parts of the Rift Valley.
The list includes prominent businessmen, entrepreneurs, athletes, elders, public servants and retired military officers.
Those named in these categories include Dr Bethwell Kiplagat, Mr Kipchoge Keino, Mr Jackson Kibor, Gen (Rtd) Lazarus Sumbeiywo and Micah Cheserem.
The lawyer said the prosecution had never bothered to interview the prominent individuals it had enjoined as part of the alleged network, and had even neglected to interview the two it had eventually put in the dock because it did not want to hear inconvenient truths that would have shattered the case early on.
Mr Kigen told the court that his client had always put himself at the disposal of the prosecution and ready to tell his story, but there was no interest. Mr Sang was also aware that his co-accused, Mr Ruto, had offered to meet the ICC prosecution even at his own expense, but the invitation was spurned.
The lawyer charged that the prosecution case had kept on mutating as initial versions proved incapable of standing scrutiny. He said that originally the case focused on the nationwide PNU-ODM rivalry at the time of the disputed 2007 elections, before changing track to focus on Kalenjin-Kikuyu hostilthities in just two areas of the Rift Valley, the Nandi and Uasin Gishu districts, despite that the fact post-election violence affected six out of eight provinces in Kenya.
Mr Kigen’s argument was that the prosecution ultimately focused on the Kalenjin as a community, using as an example part of the evidence disclosed in the opening statement and the pre-trial briefs that included evidence from circumcision ceremonies ahead of the 2007 elections where initiates were allegedly trained, armed and primed to be ready to attack when the signal was given.
“It looks like one becomes a criminal by being a Kalenjin, that one becomes a criminal by observing Kalenjn traditional circumcision, wedding and adult initiation rituals”, he said.
He said Mr Sang was an innocent victim whose popular programmes on the Kalenjin language Kass FM radio were mostly educational, focusing on social life, farming, entertainment, economics and politics; rather than hate speech and coordination of violence as depicted by the prosecution.
He dismissed the contention that Mr Sang’s radio programme and Mr Ruto’s public rallies employed code words and phrases to incite the Kalenjin, saying that such a view is meant to criminalise the use of proverbs, idioms and metaphors that should be a staple of any language.
Mr Kigen said it was unbelievable that the prosecution was going ahead with the case despite being unable to find any video or audio tapes that incriminate his client in the criminal words he is supposed to have uttered on air inciting people to violence.
It was because, he said, no such evidence existed. He produced audio tapes from Mr Sang’s Kass FM broadcasts where the accused was pleading with the Kalenjin people to maintain peace.