HAGUE: Former broadcaster Joshua arap Sang took the floor at the ICC yesterday and reiterated his 2011 self-introduction as an "innocent journalist" dragged into the dock by a clueless prosecutor.
?The diminutive journalist sat next to lawyer Kimutai Bosek as the lead advocate, Katwa Kigen, tore into the prosecution's evidence presented so far.
?Kigen braved tough questioning by the presiding judge,Chile Eboe-Osuji, to argue that the prosecution was still clutching at straws as far as Sang's case is concerned.
The court would be looking for a grain of wheat in a bushel of chaff if it proceeded on the basis of the evidence adduced so far, argued Kigen.
"Of the seven items through which Sang is accused of having made the essential contribution to the commission of the crimes alleged, only three have remained so far. The rest have either been abandoned or conceded in some form by the prosecution," Kigen told the court.
The seven are alleged broadcasts of propaganda to further violence, broadcasts of "network" events and meetings, advertising of the "network's" programmes and activities, fanning of violence through utterances, broadcast of false news to incite hatred, calling on perpetrators to violent actions and broadcasting coded language to further execution of attacks.
According to Kigen, the three claims that remain under support of the prosecution evidence are broadcast of propaganda, fanning of violence and calling on perpetrators to begin attacks on Kikuyu populations in Rift Valley.
"In support of these claims, no single audio on alleged use of inciting words such as calling Kikuyus parasites, thieves and weeds has been adduced against Sang. I would also be making submissions much later that in a democratic society, debates which go on the borderlines of those words as alleged are neither criminal nor should they bring people to this court," said Kigen.
Further, he told the judges that no linkage had been established between Sang's alleged utterances and the criminal events alleged in the case. The lawyer said although the prosecution bandies Sang's name alongside a horde of "network members", evidence so far only places him in closer affinity to only two — Deputy President William Ruto and Jackson Kibor.
And of the two, Kigen said, evidence on record showed that Sang had told off Kibor during one of the shows.
"If indeed Sang was a member of this network, he must then have been a very disloyal member. He would be accused of treasonous conduct against the network. He is on record telling off Kibor and telling him that PNU (Party of National Unity, then President Mwai Kibaki's party in the 2007 presidential elections) was actually better than ODM (Orange Democratic Movement)," he said.
The lawyer also argued that the case should be dismissed on account of lack of credible "network" through which Sang would have made the alleged essential contribution to the commission of crimes. This prompted Eboe-Osuji to ask whether lack of finding of the network would be amenable to commission of crimes against humanity.
Kigen insisted a network was necessary in proving a crimes-against-humanity case. He said if the court fails to affirm the existence of a network, it would have no jurisdiction to determine the matter.
"Take a hypothetical case of two situations where violence occurs in same dimensions as Kenya in 2008 and where in one, there is found to be a network and in the other no network. Are you saying the court should let go of the situation without network and proceed with the other?" Osuji asked.
Kigen answered: ?"Yes, that is what the statute intended, that you do not try mafias, gangs and people of that sort. I am afraid if you do not find a network, the only remedy would be to petition the state parties to legislate for that set of circumstances."
In pleading for Sang's case to be terminated at this stage, Kigen said Sang was being persecuted for executing his job as a journalist. He said Kass FM, the medium through which Sang is accused of committing the crimes, was a commercial enterprise.
He said if Sang made certain announcements cited by the prosecution as evidence of commission of crimes, he did so as part of discharging his duties as an employee of the company and had nothing to do with the announcements at a personal level.
?"In all the pleadings made before you Mr President, the language is the same; 'please infer this, please infer that' on the part of Sang's conduct. There's absolutely no evidence presented before you that directly implicates him in the commission of the crimes alleged," he said.
Sang did not speak during the presentation. He sat behind Kigen occasionally fiddling with his pen and other times passing on written notes to his lawyers.
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