Why ICC confirmation hearings fell short of public expectations

By Lillian Aluanga

Lack of understanding of the International Criminal Court (ICC) process may have misinformed the public’s expectations of the confirmation of charges hearings.

Reactions to the September hearings have been varied, with opinion divided on whether the prosecution and defence teams lived up to expectations during the month long process at The Hague.

According to lawyers familiar with the ICC, the ‘in-between phase’, also known as the pre-trial or confirmation of charges hearings, may have confused a public more familiar with proceedings of a full trial, hence the high expectations.

Eldoret North MP William Ruto, Tinderet MP Henry Kosgey and journalist Joshua Sang are charged with crimes against humanity – murder, forcible transfer and persecution under Case 1.

Civil Service head Francis Muthaura, Deputy Prime Minister Uhuru Kenyatta and former Police boss Hussein Ali are charged with similar crimes including that of rape and other inhumane acts under Case II.

"It is important for the public, politicians, lawyers and analysts to understand that this was not a trial. It is true that defence teams poked holes in the prosecutor’s evidence at this stage. This may have raised doubts among many on the strength of the case but the public should know this is naturally what is expected of defence lawyers. The defence, in any other legal system, has to play the role it did during the hearings," says International Centre for Transitional Justice’s Christine Alai.

Alai cautions on temptation to make conclusions at this stage based on what was seen and heard. Alai says Kenyans should let the ICC’s legal process run its course and await the judges’ decision.

More details

"It would be foolhardy for anyone to make any claims at this stage as to whether the cases will be confirmed or not. The matter is in the hands of the judges because they have a lot more information on the cases which was redacted and which is not in public domain," says Alai.

Essentially, confirmation of charges hearings are not supposed to erase all doubts in a case. In fact, some of the questions raised during the proceedings could serve as a motivation to commit a case to trial.

"Confusion over how the ICC works is partly driven by comparisons the public may be making with our criminal justice system," says the Director of the African Centre for International Legal and Policy Research Godfrey Musila.

According to Dr Musila, the main task for ICC Prosecutor Luis Moreno-Ocampo during confirmation of charges hearings was to present just enough evidence to convince the three judges that the Kenyan cases should go to full trial.

"In our criminal justice system, if the prosecution has enough evidence then a trial can begin. It’s important to note, though, that locally, there is also a standard expected of evidence presented by the prosecution, which unless rebutted could see a judge rule that a suspect has a case to answer. But that threshold is not the same as what is required at the ICC to commit cases to trial," adds Musila.

According to Alai, the fact that the defence chose to attack the credibility of the prosecution witnesses should not be solely used as a basis to conclude on whether charges will be confirmed.

"There were up to 12 prosecution witnesses. The defence teams took issue with two or three of the total number, and there is still a lot of information we don’t have on the other witnesses and their evidence. This wealth of information is in the hands of the judges and it is they who will make the final call," says Alai.