What the other ICC judge had to say

By Ben Agina

The dissenting opinion of the judge who rejected Prosecutor Luis Moreno-Ocampo’s request for summonses against six Kenyans is out.

The ruling by Justice Hans Peter-Kaul, who is the Vice- President of the International Criminal Court, contradicted those of his other colleagues in the Pre-Trial Chamber II. It was made public by ICC a week after the main ruling was issued.

The thrust of his argument was that ICC has no jurisdiction in the situation in the Republic of Kenya, which dovetails with the reasons the President’s side has given in questioning admissibility of ICC cases against the six Kenyans. Kaul revealed that Moreno-Ocampo in his evidence had implicated ODM party leader Raila Odinga saying he had assisted the three individuals named to commit the crimes.

"One reference in the evidence alleging that support and assistance was provided by Raila Odinga is contrasted by other information in the evidence suggesting that the national ODM leadership was not directly implicated in the events," said Kaul.

The judge said with the evidence at hand, it is also striking that the prosecutor chose in his application to advance the argument of crimes against humanity pursuant to an "organisational policy" while neglecting the role and function of the State.

Kaul in his 19-page dissent rejected the contention that the there was an organisation policy in the crimes committed by the six suspects.

Crimes against humanity

He is also the same Judge who last year differed with his colleagues on whether the crimes committed in Kenya fell under the ‘cluster’ of crimes against humanity.

ICC Judge Hans-Peter Kaul. (PHOTO: JOHN Lectus/Standard)

The prosecutor, Justice Kaul argued, "failed to provide an accurate factual and legal submission" for acts of violence committed by the Kenyan Police Force in Kisumu Town and Kibera, which he added, "would have allowed me to assess whether the acts were committed pursuant to a State policy".

Kaul laid bare that Moreno-Ocampo in his application has been using as evidence reports of non-governmental organisations and commissions that he submitted on November 26, 2009, when he sought the Chamber’s nod to begin investigations into the Kenya situation.

Raising money

Kaul disagreed with Moreno-Ocampo that local politicians and business people "organised meetings for the purpose of raising money" or provided "hundreds of pangas", which were distributed to Party of National Unity youths.

He also rejected evidence by the Prosecutor that Eldoret MP, William Ruto, and Tinderet MP, Henry Kosgey, used Orange Democratic Movement’s structures to perpetrate the alleged crimes they committed.

"I am not satisfied that the evidence supporting the allegations that the three suspects used the ODM structure to plan and organise the attacks against the Kenyan civilian population," argued Kaul, who is a German Judge.

The Judge said it was unclear to him whether Ocampo considers ODM in its entirety to be the ‘network’ political branch or whether he was concerned with individual politicians. Ocampo had accused Ruto and Kosgey; an assertion upheld by the other two judges, that they were the leader and deputy of a terror network that committed crimes against pro-PNU supporters in the Rift Valley.

Kaul stated that Ocampo in his submission had described Ruto as the single-most authoritative figure and that Kosgey was second to Ruto.

On the basis of the prosecutor’s presentation of the case and the evidence submitted, he said, he failed to see how an ‘organisation’ could have existed in which the primary actors were the Mungiki gang and Kenya Police Forces.

However, the evidence satisfied Kaul provided that Uhuru Kenyatta was the principal contact between Mungiki gang and the principal perpetrator.

"However, a series of meetings with facilitators and the principal perpetrators does not transform a limited partnership of convenience into an ‘organisation’ within the meaning of Article 7(2)(a) of the Statute," he said.

Kaul concluded that the organisation’ as presented by the prosecutor, consisting mainly of the Mungiki gang and the Kenya Police Forces, did not exist. Mungiki gang appears to control core community activities and to provide services, such as electricity, water and sanitation, and transport, he said.

Criminal conduct

However, the activities of the Mungiki gang remain limited in nature and are territorially restricted, in particular, to the slums of Nairobi, he went on.

On Head of Civil Service, Francis Muthaura, and the then Police Commissioner, Hussein Ali, Kaul said any assessment of criminal conduct by the Kenya Police Forces should have considered the official positions of the two principal perpetrators and, as the case may be, the responsibility of others with respect to the Kenya Police Forces.

"I therefore concur, in principle, with the majority finding that the prosecutor "failed to provide an accurate factual and legal submission" for acts of violence committed by the Kenya Police Forces in Kisumu town and Kibera, which would have allowed me to assess whether the acts were committed pursuant to a State policy," said Kaul. It is this part of the ruling that Ocampo has declared he would appeal against.

In sum, while he was satisfied those crimes were committed in Nakuru, Naivasha, Kisumu and Kibera, and that certain organisational measures were taken to this end, the judge failed to see that these crimes were embedded in an "organisational policy".

Failed to prove

"I consider that the prosecutor has failed to prove that the crimes were committed pursuant to a policy of a state-like ‘organisation’ which is an indispensable element and inherent characteristic of crimes against humanity under Article 7 of the Statute," concluded Kaul.