Defence teams ask ICC judges to drop charges

Business

By Standard Team

It has been a gripping few weeks during which Kenyans watched their dirty political linen laid out for the entire world to see at The Hague.

Among those watching was the political class, whose future in next year’s elections is intertwined with those of the six suspects now awaiting the outcome of the just ended confirmation of charges hearings. Political careers on both sides of the divide will rise or fall based on the ruling the judges make in the next three months.

The 'Ocampo six'. Defence lawyers made their final submissions on Wednesday. Photo Standard

And for the first time since Eldoret North MP William Ruto compared the charges against him to a Nollywood-style movie, a reality check is in place, and the ICC judges, regardless of how they rule, will influence the tone and conduct of next year’s elections.

After Wednesday, a variety of political and legal analysts will be racking their brains trying to figure out which way the International Criminal Court Pre-Trial Chamber II judges will rule, and the implications.

The judges can confirm or decline to confirm the charges for lack of evidence. They can also adjourn the hearings and request the Prosecutor to consider providing further evidence or conduct further investigations with respect to a particular charge. They can also ask the Prosecutor to amend a charge to conform to the submitted supporting evidence.

If the Chamber declines to confirm a charge, the Prosecutor can subsequently resubmit the charge for confirmation based on additional supporting evidence.

Trigger violence

Presiding Judge Ekaterina Trendafilova on Wednesday signed off on the confirmation of charges hearings with a stern warning to the suspects to restrain from engaging in any activities that could trigger violence or violate the conditions of their summons.

It came on the back of allegations by a lawyer for victims in the first case that a sitting MP made threats against a witness during a call-in to a local radio station that transmits in the Kalenjin language.

The MP has since recorded a statement with the police. Also recently, the family of one witness claimed their home had been attacked.

"Suspects are reminded to refrain from engaging in activities directly or indirectly related to the proceedings in the Chamber that could trigger violence," said Trendafilova as she closed the proceedings.

The fate of the six is now firmly in the hands of the three stern Pre-Trial judges, two of whom rarely spoke during the hearings unless to express their displeasure with conduct of lawyers on both sides or to seek a clarification.

Trendafilova assured Kenyans that the Chamber’s judges would peg their decision "independently and impartially after carefully examining the evidence of both parties".

She asked "the citizens of Kenya to respect the life, security and property of victims in the cases and be mindful of the fact that witnesses in the two cases have performed their civil duty in order to make their contributions".

On Wednesday, the defence counsel for the six accused made passionate appeals to judges Trendafilova, Hans-Peter Kaul and Cuno Tarfusser to dismiss the charges against their clients, saying the prosecution had failed to provide compelling evidence to warrant trials.

MPs William Ruto (Eldoret North) and Henry Kosgey (Tinderet) alongside radio journalist Joshua Sang are lumped together in the first case. Case two comprises Deputy Prime Minister Uhuru Kenyatta, Head of the Civil Service Francis Kirimi Muthaura and Maj- Gen Hussein Ali.

For Uhuru and Ruto, it was not simply a matter of trying to prove Moreno-Ocampo wrong, but it was a fight for their very political survival. If the cases are confirmed, the two might still have their names on the ballot for next year’s presidential race, but their credibility could be severely dented. Prof Larry Gumbe says if the charges are confirmed, Uhuru and Muthaura must leave office as per requirements of the Constitution which impacts negatively on their political careers.

"International stigmatisation that one is a suspect erodes confidence of politicians. But worse will if the charges are confirmed it will limit their ability and mobility to campaign in the 2012 race," said Prof Gumbe.

It explains why their defence teams sought to portray the ICC case as political mischief designed with the help of the prosecution — inadvertently or not — to destroy their chances of running for the highest office.

Political chicanery

Indeed, both Uhuru and Ruto’s lawyers tagged Prime Minister Raila Odinga with political responsibility for the violence that killed over 1,000 Kenyans and displaced hundreds of thousands. But it was Uhuru who used the stage offered by the hearings to maximum advantage with a performance that will have cemented belief among his supporters that he is a victim of political chicanery.

What baffled everyone was the low-keyed cross-examination of Uhuru by Moreno-Ocampo, during which the prosecutor’s clumsy enunciation of the English language was laid bare by Uhuru’s well-oiled performance and that of his legal team.

His lawyer, Mr Stephen Kay, described it as "an empty hour" and appeared to poke fun at the much-feared Prosecutor by saying they expected him to use his cross-examination of Uhuru to mount a serious challenge of the DPM’s testimony.

"That ICC trial has accorded the suspects an opportunity to clear their names. It has emerged that no tangible evidence has been tabled linking them to the chaos they are accused of, "said Dr Tom Namwamba a PNU strategist.

"The ICC case has solidified Uhuru’s political platform. If the charges against him are terminated he stands a better platform for the 2012 elections," Namwamba told The Standard on Wednesday. However, given that they will have been advised by their counsel to take seriously the warning by judge. Trendafilova on their conduct following the hearings, the ability of Uhuru and Ruto ability to fully exploit any mileage gained from bashing Moreno-Ocampo and Raila at The Hague will be severely tested.

For Muthaura, believed to have the ear of President Kibaki, a long and distinguished reputation as a hardcore civil servant is on the line.

"It will be unfortunate to Ambassador (Francis) Muthaura who has served for so long to exit unceremoniously if charges are preferred against him," said East African Law Society Vice President James Mwamu.

Others believe the cases have changed Kenya for good. "Kenyans will not again easily go to war because of political competition. They know whatever they will do will have repercussions as the world watches over the nation," said Dr Adams Oloo, a political analyst and chairman of the University of Nairobi’s Department of Political Science.

Kituo Cha Sheria Executive Director Priscilla Nyokabi says whether the charges are confirmed or dismissed is irrelevant because the damage has already been done.

"Even if the law doesn’t bar Uhuru from contesting elections if the charges are confirmed it is unlikely Kenyans would elect as their President someone with the ICC baggage like Sudan’s Omar Bashir," Nyokabi says.

For Raila Odinga, there is consensus that Uhuru’s performance has severely dented his chances of securing the Central Kenya vote.

Reporting by Beauttah Omanga, Alex Ndegwa and Evelyn Kwamboka.

Business
Premium Ruto's food security hopes facing storm amid fake fertiliser scam
Real Estate
Premium Affordable housing: Will State's data-backed action now pay off?
Business
Premium Nairobi business community plans protest as over 700 containers held at port
By Peter Muiruri 16 mins ago
Real Estate
Premium Building to the skies, but at what cost?