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ICC: Ruling clears way for full trial of four suspects

By | Updated Fri, March 2nd 2012 at 00:00 GMT +3

By Alex Ndegwa

The International Criminal Court Appeals Division has ruled that the full trial of four Kenyans accused of crimes against humanity can go ahead.

The ruling has thrown the presidential bids of Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto into a spin.

It followed a rejection by the ICC Appeal Chamber of petitions by Ruto, Uhuru, Kass FM executive Joshua arap Sang and Francis Muthaura for the court to suspend their trials in the two cases, until appeals they had filed challenging its jurisdiction were heard and determined.

ICC President Judge Sang-Hyun Song can now go ahead and constitute a Trial Chamber to hear the cases.

William Ruto

Once the trials start, all four suspects would have to be present in court throughout the proceedings, a development that would cripple Uhuru and Ruto’s presidential campaigns should the Independent Electoral and Boundaries Commission (IEBC) clear them to run.

The judges to conduct the trials of the four post-election violence suspects will be picked from the Trial Division of the ICC, but will exclude any of the judges that sat on the pre-trial phase of the two cases.

The judges of the Trial Division include Kenya’s Joyce Aluoch, Sir Adrian Fulford of the UK who is also the President, Fatoumata Dembele Diarra (Mali), Elizabeth Odio Benito (Costa Rica), Bruno Cotte (France), Christine Van den Wyngaert (Belgium), Kuniko Ozaki (Japan), and RenÈ Blattman (Bolivia).

Once Justice Sang-Hyun Song constitutes the Chamber, it will further narrow the options for Uhuru and Ruto, the G7 leaders who have insisted nothing would stop them from running for president.

Threat to political ambitions

The two are also facing a local court case challenging their eligibility to run for high office and a tough Bill on Leadership and Integrity is due in Parliament, further complicating their positions.

But it is the rejection by the five judges of the Appeal Chamber of the applications for suspension of their trials that poses the greatest threat yet to their presidential ambitions.

ICC Rules of Procedure and Evidence also stipulate the presidency may also refer the case to a previously constituted Trial Chamber.

Start of trials would deny Uhuru and Ruto one of their claims for a right to be on the ballot in the election of Kenya’s fourth president that they are not yet on trial.

The Appeals Chamber, which will rule on whether the ICC has jurisdiction to try the two Kenya cases, held there was not sufficient grounds to support the appellants’ request for suspension of trials.

Presiding Judge of the Appeals Chamber Akua Kuenyehia, and fellow judges Sang Hyun Song, Erkki Kourula, Anita Ušack and Daniel David Ntanda Nsereko cited a past ruling on Jean-Pierre Bemba while rejecting the request by the four suspects for the trials to be suspended.

Bemba case

Further, the judges observed, the defendants did not provide any proper reasoning or submissions supporting their request.

The rejection of the application, the judges explained, would not lead to an irreversible situation that could not be corrected were the Appeals Chamber to eventually find in favour of their appeals.

Nor could it potentially defeat the purpose of the appeal, the judges added, noting that neither of the defendants had put forward any argument that it could do so.

Deputy Prime Minister Uhuru Kenyatta (left) and former Head of Public Service Francis Muthaura in a past function. Photo: File/Standard

Citing the Bemba case in which a similar application to suspend trial pending determination of his appeal was rejected, the Appeals Chamber found similar considerations apply in the two Kenyan cases.

The judges said continuation of trial does not foreclose reversal of the decision to commit the four to trial, citing the jurisdiction appeal that was pending even as Bemba’s trial got under way.

At the time the judges argued that if the Appeals Chamber were to eventually decide to grant Bemba’s appeal, any ongoing proceedings could be discontinued at that time.

On the Kenyan applications the judges said: "Appeals Chamber is able to reverse, confirm or amend the Impugned Decision irrespective of whether the proceedings before Trial Chamber III continue."

The Appeals Chamber noted in addressing the appeals of Uhuru, Muthaura, Ruto, and Sang that it can "confirm, reverse or amend the Impugned Decision in relation to its findings in respect of jurisdiction".

The judges added that any such determination would be implemented irrespective of whether the proceedings continue.

"If the Appeals Chamber eventually decides to grant Ruto and/or Sang’s appeals (and) Uhuru and/or Muthaura’s appeals, any ongoing proceedings could be discontinued at that time," the judges said.

However, the Appeals Chamber noted that the Prosecutor had stated that either he or the defendants may request the Presidency to delay constituting a Trial Chamber or may request a constituted Trial Chamber to postpone the commencement of further proceedings.

"The Appeals Chamber deems it neither necessary nor appropriate to comment on the merits of any such future application that may be made," said the judges.

Equally the judges cautioned: "The Appeals Chamber emphasises that the decision is concerned only with the requests for suspensive effect, without in any way prejudging or touching upon any other matters that the Appeals Chamber may address subsequently in respect of the present appeals."

Radio presenter Joshua Sang at the International Criminal Court, at The Hague, The Netherlands, Friday 2, 2011. [PHOTO/ EVANS HABIL/Standard]

Prosecutor Luis Moreno-Ocampo had expressed no objection to the applications even though he had indicated the filings had not met the criteria the Appeal Chamber established.

Interest of justice

"Notwithstanding the prosecution’s opposition, however, it agrees that the interest of justice might exceptionally justify delaying the initiation of trial proceedings and may make a request to that effect or support a defence request or both to the Presidency or to be appointed Trial Chamber," court records indicated the prosecutor saying.

Uhuru, Muthaura, Ruto and Sang had filed notices of appeal on January 30, against the majority ruling on jurisdiction, and requested that the Trial Chamber should not be constituted until the appeal is concluded.

Moreno-Ocampo cited two factors that persuaded him that the interest of justice may favour delaying the trial: The dissenting opinion by one of the Pre-Trial Chamber judges and caution not to expose witnesses before trial proceedings are secured.

Exceptional circumstances

He explained: "First there is a dissent in this case on a fundamental underlying legal issue, the definition of "organisational policy" within the meaning of (Rome Statute)."

He added: "In addition postponement of the trial proceedings will serve the interests of prospective witnesses who otherwise would have to be identified – this implicating their security and triggering the need for greater protective measures – before there is certainty that the trial will proceed."

Moreno-Ocampo further argued that since the appellants are not in detention, there was no urgent need for the trials to begin immediately.

The prosecutor also cited the exceptional circumstances of the Kenya case – the fundamental nature of the issue being appealed and the significant and complicated need to implement witness protection measures.

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