By Alex Ndegwa
International Criminal Court Appeals Chamber has literally sealed all exits on the Nairobi-Hague expressway for Kenya’s high-profile suspects indicted for crimes against humanity.
Their fate now depends on the defence they will put up in the full hearing phase against the serious charges — that include murder and persecution, preferred against them by the Prosecutor and upheld by Trial Chamber II. The ruling also cast doubts on whether Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto will still be able to run for presidency following the rejection of their appeal, despite their heavy investment in political campaigns for State House.
The other two whose effort to stop ICC’s full trial against them are former Head of Civil Service Mr Francis Muthaura and Kass FM head of operations Mr Joshua Arap Sang.
“Today, 24 May 2012, the Appeals Chamber of the International Criminal Court decided unanimously to reject the appeals regarding the challenges to the ICC’s jurisdiction, raised by the Defence teams in the two Kenyan cases,’’ opened the ruling ICC uploaded into its website last evening.
The judges concluded: “As the Prosecutor has expressly alleged crimes against humanity, including the existence of an ‘organisational policy’, the Appeals Chamber found that the ICC has subject-matter jurisdiction over the alleged crimes.”
This means after the June 11-12 status conference at The Hague, which they do need not take part, once the hearing starts they will have to be in the court at every sitting until the ruling is delivered.
The Appeals Chamber upheld the decision that ICC has jurisdiction over the two Kenya cases, rejecting the applications by the defendants challenging the court’s authority to try them for allegedly orchestrating the 2008 post-election violence.
The status conference gives the parties the platform to agree on the trial date and other procedures during the hearing. The defendants can be represented by their lawyers at the procedural proceedings but must be present in the courtroom throughout their trial, whose starting date the country now waits.
The decision by the five-judge Appeal’s Bench clears the way for Trial Chamber V to commence proceedings. By rejecting the applications by the four, the judges have paved the way for them to appear at The Hague to stand trial, which could be a distraction for two of the presidential hopefuls.
The decision is a blow to planned presidential campaigns by Uhuru, who launched The National Alliance last Sunday as his preferred vehicle to State House, and Ruto, who has popularised United Republican Party.
Although the two G7 Alliance leaders have maintained their names will be on the ballot in the elections due next year, their eligibility to contest will once again come into focus with the trials expected to get underway in weeks or months.
At the launch of TNA, Justice minister Eugene Wamalwa revisited the issue considered the ‘elephant in the room’ whenever discussions on the presidential candidatures of the two take place.
Wamalwa told the audience there were those who had questioned whether Uhuru is eligible to run for President (while facing the grave charges) and he answered rhetorically: “And I dare ask why not?”
leadership and integrity
Wamalwa held a frontline role during the ceremony — he introduced the Gatundu South MP to the podium — fueling reports that the Saboti MP is Uhuru’s preferred running mate.
Locally, a court case is pending challenging their eligibility to run for high office on grounds of Chapter Six on leadership and integrity, which requires that one, can’t run if he or she has a court case, until it is determined.
A Bill to enforce the constitutional provisions on integrity has been drafted and is expected in Parliament, which could be the next battleground among MPs. While the latest decision by the ICC does not entirely foreclose the possibility to have the cases referred to the country, Kenya faces the hard task of demonstrating it could undertake credible prosecutions of the four.
The Government has lobbied the African Union to pursue another petition to the UN Security Council to have the trials suspended for a year over alleged claims of threats to peace and security. There are also attempts to have referred to Continental courts.
In a unanimous decision, Presiding Judge Akua Kuenyehia and judges Sang-Hyun Song, Sanji Mmasenono Monageng, Erkki Kourula and Anita Usacka upheld the Pre-Trial Chamber II decision to confirm the charges against the four in January.
“The Appeals Chamber concludes that the issues that Mr Muthaura and Mr Kenyatta raise on appeal, namely that the Pre-Trial Chamber erred in its interpretation of ‘organisational policy’ and its conclusion that such a policy existed, are not issues of subject-matter jurisdiction ... and these issues are not properly before the Appeals Chamber,” read the ruling.
The judges added the issues instead related to whether the Pre-Trial Chamber erred when it confirmed the charges in respect of Mr Muthaura and Mr Kenyatta. “Accordingly, the appeals as a whole must be rejected,” stated the ruling signed by Judge Kuenyehia.
On January 30, Mr Muthaura and Mr Uhuru filed an appeal against Jurisdiction in which they had challenged the interpretation of the term ‘organisational policy’.
They petitioned the chamber to reverse the Pre-Trial Chamber’s “definition of ‘organisational policy’ and its evidentiary finding that the Prosecution has submitted sufficient evidence of substantial grounds to believe that the crimes were committed by (them) in furtherance of an ‘organisational policy’.
Ruto and Sang raised similar grounds.
But the prosecutor countered that the issues were not jurisdictional because they went to the merits of the case and that the Court had jurisdiction because crimes against humanity had been charged.
The status conference for the case involving Ruto and Sang will take place on June 11.
That of Uhuru and Muthaura is scheduled the following day.
The conference will address key issues in preparation for the trials among them the language to be used during the proceedings, the anticipated length of the presentation of evidence at the trial, and the material already disclosed and that to be disclosed by the prosecution.
The lawyers of the defendants had devised a two-pronged strategy to persuade The Hague judges to drop the cases. They set out to contest the legal definition of ‘organisation’ and submitted that there wasn’t sufficient evidence to establish the existence of an ‘organisation policy’ to commit crimes.