Last hope for Ocampo Four

By Alex Ndegwa

Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto began a second round of ‘prayer’ meetings pending the outcome of their last hope to stop trials at the International Criminal Court.

The ICC Appeals Chamber, which will decide whether The Hague has jurisdiction on the two Kenya cases, is the last hope for the Ocampo Four with the Trial Chamber expected to be set up in May.

Radio journalist Joshua arap Sang

It is more likely the Appeals Chamber will issue their ruling before the Court’s Easter break that runs from April 5 to 16.

On Monday the Registrar of the ICC transmitted to the court’s presidency the decision of the confirmation of charges and records of proceedings to prepare for the constitution of the Trial Chamber.

This was to comply with the directive by the Pre-Trial Chamber judges who last week decided not to allow the four accused of crimes against humanity to appeal their committal to trial.

The rallies resumed yesterday on the back of the first ICC conviction in the case of the Democratic Republic of Congo’s Thomas Lubanga and rejection by the Appeals Chamber of the Ocampo Four plea for suspension of trial pending determination of the jurisdiction challenge.

Last straw

Uhuru, Ruto, former Head of Public Service Francis Muthaura and radio journalist Joshua arap Sang are clutching on the last straw, contending that the ICC has no legal authority to try them over the 2008 post- election violence.

Their lawyers have devised a two-pronged strategy to persuade The Hague judges to drop the cases. Contesting the legal definition of ‘organisation’ and submitting that there isn’t sufficient evidence to establish the existence of an ‘organisation policy’ to commit crimes. They are relying on the dissenting opinion by Judge Hans-Peter Kaul who consistently argued the ICC has no jurisdiction over the two Kenya cases.

Fellow Pre-Trial Chamber II judges Ekaterina Trendafilova and Cuno Tarfusser in confirming the charges against the four on January 30 upheld the court has jurisdiction.

The applications by the four defendants quote extensively from Judge Kaul’s rulings in which he disagreed with the majority as to the interpretation of what constitutes an "organisation" within the meaning of Article 7(2)(a) of the Statute.

Judge Kaul has asserted that only "State-like organisations" can satisfy the policy requirement outlined in the Article.

In the case involving Uhuru and Muthaura, Judge Kaul has held that he failed to see how an ‘organisation’ could have existed in which the primary actors were the Mungiki gang and the Kenya Police Forces.

He disagreed the ‘Network’ — the prosecution’s reference to former army commanders, local leaders, businessmen and politicians associated with ODM accused of attacking PNU supporters — assumed the status of State-like ‘organisation’ in the case involving Ruto and Sang.

Ruto, through his lawyer Kioko Kilukumi, cites Judge Kaul’s assertion that: "He was not satisfied to the ‘degree of certainty’ that the crimes were committed pursuant to the policy of a State-like ‘organisation’, which is an indispensable constitutive contextual element and inherent characteristic of crimes against humanity under Article 7 of the Statute."

Sang also advances the argument in a separate filing through his lawyer Kipchumba Kigen Katwa.

Mungiki members

In a joint application, Uhuru and Muthaura, through their lawyers Steven Kay and Gillian Higgins, and Karim Khan, cite similar observation by Judge Kaul. All applications were filed on January 30.

They have challenged the court over the conclusion that PNU youths were part of the Mungiki sect members used to commit retaliatory attacks in Naivasha and Nakuru in 2008.

Their point is that for a private entity to be an organisation, which is a structured entity complete with chain of command, under the Statute it must have State-like characteristics such as territorial control.

Former Head of Public Service Francis Muthaura

The defence teams submit that while the Pre-Trial Chamber accepted that there was a need for an organisation behind the policy, it rejected the requirement that such an organisation must possess any State-like elements.

But judges Trendafilova and Tarfusser ruled that the relevant threshold concerns "whether a group has the capability to perform acts which infringe on basic human values".

Therefore, as part of the confirmation decision, the two judges determined that the Court has jurisdiction over the suspects because they belonged to an "organisation" or adhered to an "organisational policy".

ICC Prosecutor Luis Moreno-Ocampo contends the appellants had failed to show any error in the reasoning and finding of the Pre-Trial Chamber worth intervention of the Appeal Chamber.

"The appellants’ arguments that the concept of organisation and the purported insufficiency of evidence adduced by the prosecution are not jurisdictional issues and should be decided at the trial," Moreno-Ocampo argues.

In the appeal Uhuru’s lawyers protest the Pre-Trial Chamber committed a "fundamental error" by branding his application as a challenge to the "merits of the prosecutor’s case on the facts" rather than a challenge to jurisdiction.

The four defendants request the Appeals Chamber to reverse the Pre-Trial Chamber’s definition of "organisational policy". They ask the judges to find the prosecution had not submitted sufficient evidence to establish substantial grounds to believe that the crimes were committed in furtherance of an organisational policy.

The ultimate relief sought by the four defendants is for the Appeals Chamber to decline to exercise its jurisdiction over the situation in Kenya, and dismiss the cases against them.

As the appeal on jurisdiction is considered, the four defendants may hope for more arguments like those advanced by one of the Appeal judges while considering Kenya Government’s appeal on admissibility.

Judge Ušacka, who is in the Appeal Bench, found the Pre-Trial Chamber had been unfair to the Kenyan Government by not allowing authorities more time to furnish the court with progress reports in investigations.

But the Appeal Chamber then upheld unless investigative steps were actually taken in relation to the suspects, who are the subject of ICC proceedings, there was no conflict of jurisdiction between the Court and the national proceedings.