Count down to ICC decision on Kenya case begins

Evelyn Kwamboka

Three post-election violence suspects have beat the deadline to file their final written submissions on the confirmation of charges to the International Criminal Court.

Eldoret North MP William Ruto, Tinderet MP Henry Kosgey and radio presenter Joshua Sang did this as they count days to Pre-Trial Chamber II’s decision.

The decision aimed at deciding their fate on whether they will go for full trial on crimes against humanity, is expected to be delivered by a three-judge bench, in the next 90 days.

The three suspects punched holes on the prosecution’s evidence, saying it was contradicting the allegations he made against them in the Document Containing Charges (DCC).

Lawyer Kigen Katwa who filed the submissions on behalf of Ruto and Sang pointed out that Ocampo based his evidence on speculation, adding that even the alleged network the suspects are said to belong to did not plan the 2007-2008 attacks.

"The prosecutor has spectacularly failed to demonstrate substantial grounds upon which to believe any of the constituent elements of the crimes or mode of liability should be confirmed.

The prosecutor does not follow a clear and coherent line of reasoning and logic," he added.

Just like at the confirmation of charges hearing in September-October 2011, Katwa said the prosecution evidence failed to demonstrate to the required legal standard, a casual link between the violence and Ruto.

Mr George Oraro for Kosgey took issue with the prosecution’s anonymous witness six, saying Ocampo relied on him in his evidence against his client.

"As the evidence of anonymous witness six is the only evidence of Mr Kosgey’s involvement in the alleged crimes, there is insufficient evidence for a finding that substantial grounds exist to believe that Kosgey committed the crimes alleged," Oraro said.

The submissions were made as a search committee for the person to fill Ocampo’s position in 2012 released a list of shortlisted candidates.

In the report forwarded to the Assembly of State Parties to the Rome Statute President Christian Wenaweser by the search committee’s deputy coordinator, Ambassador Milos Koterec, the candidates are Ocampo’s deputy Ms Fatou Bensouda (Gambia), Andrew Cayley (UK), Tanzania Chief Justice Mohamed Othman and Robert Petit (Canada).

"The report containing the names reflects a consensus of the members of the committee," he said.

The Assembly resolution ASP/1/Res.2 provides that every effort shall be made to elect the prosecutor by consensus.

In his letter to the ICC’s Members Bureau of the Assemblies of State Parties of the Rome Statute Wenaweser said he is confident the report will be helpful to the bureau’s authorities in their considerations in this process.

"I will therefore, over the coming weeks, establish an informal consultation process within the Assemblies in order to enable State parties to reach a consensus on the question of the nomination and election of the next prosecutor, as mandated by the Assembly," he stated.

The search committee received a list of 52 names and interviewed eight only. At the end of the day, four candidates qualified for the next step. This is the step where Assemblies of State Parties will nominate one person at a meeting set to commence on December 12.