Ali's lawyer blames violence on rioters

By Evelyn Kwamboka

The defence team has called on the International Criminal Court to find Postmaster General Hussein Ali innocent in connection with 2008/2007 post-election violence.

His lawyer Evans Monari said his client cannot be held responsible for the violence that rocked Naivasha and Nakuru, based on the law he is charged under.

Ali is charged under Article 25 (3) (d) which states that in accordance with the Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the court if that person in any way contributes to the commission or attempts to commission of such a crime by a group of persons acting with a common purpose.

The Article further states that such a contribution shall be intentional and shall either be made with the aim of furthering the criminal activity or purpose of the group, where such an activity or purpose involves the commission of a crime within the court jurisdiction of the court.

Monari said the ICC Prosecutor Luis Moreno-Ocampo failed to meet the requirements under this Article and instead, created a "concept of ad hoc organisation in an attempt to salvage his case."

The court was told Ali cannot be held responsible for actions committed by any organisation as an individual, since the Rome Statute is very clear on such an issue.

Witness statement

"The widespread attacks were committed by rioters and criminals and not Ali or the police," he argued.

It is the defence’s case that Ocampo and his team of lawyers failed to prove to the court that Ali or an organisation committed the attacks that left in Nakuru 112 people dead, 39 reported cases of rape and at least five cases of forcible circumcision.

In Naivasha, there were at least 40 cases of deaths, four circumcision cases and more than 10,000 people displaced.

"Thugs took the law into their hands and not at the behest of Ali or the police. There is no evidence that Ali had knowledge of the attack," Monari told Pre-Trial Chamber II judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser.

The court was told the only evidence against Ali is a witness statement by a man who watched television, and said only 19 arrests were made.

Evidence was tabled in court, showing more than 300 people were arrested in the Rift Valley by January 21, 2008.

A total of 156 criminals were arrested in Naivasha in one day but the prosecution alleges only 19 were arrested.

"The reason for the prosecution theory is that they will throw mud at the suspects. It is not clear why the prosecution did not refer to the Waki or Human Rights Watch reports," Monari said.