Deputy President William, Joshua Arap praised for co-operation

Deputy President William Ruto’s wife Rachel Ruto and her daughter leave the International Criminal Court building  The Hague, Netherlands, after court proceedings Tuesday.  [PHOTO: PIUS CHERUIYOT/STANDARD]

BY ALLY JAMAH

The Presiding judge in the trial facing Deputy President William Ruto and former radio journalism Joshua Arap Sang has praised the level of cooperation the two suspects have demonstrated since the whole ICC process began.

Judge Chile Eboe-Osuji noted in his opening remarks that Ruto and Sang have cooperated fully with the court and hopes the level of cooperation will continue till.

“The accused have always appeared before the court whenever required to do so. On some occasions, they have even appeared of their own accord without being required by the court to appear,” he said.

Here are excerpts of his speech:

“As a preliminary matter, it may be of some assistance to review briefly the some of the milestones in the procedural road we have travelled to reach to the phase of the case that begins today.

The origins of this case lie in the time after the 2007 elections. On the 26th of November 2009, the prosecutor requested authorisation from the Pre-trial chamber to conduct investigations into the situation in Kenya following the post-election violence of 2007.

Issue summonses

On 31st March 2010, The Pre-trial chamber granted the prosecutor what he had requested. As part of the unfolding proceedings, the prosecutor requested the chamber to issue summonses to appear to three individuals requiring them to appear before the court. The individuals are William Ruto, Henry Kosgey, and Joshua Arap Sang in this case. We are not talking about to what happened in the companion case of Uhuru Kenyatta.

By a majority, the Pre-trial chamber decided on 8th March 2011 issuing the summonses to appear, which is a judicial mechanism that aims to secure the attendance of accused persons in a criminal court without using the more aggressive method of arrest warrants and detention.

 Initially the ICC gave the Kenyan government a deadline of July 2010 to establish a local tribunal before it would refer the case to the ICC Prosecutor Luis Moreno Ocampo.

 The judges who made this decision, Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser noted in their written ruling that while Article 15 of the Rome Statute does allow for the Prosecutor to investigate and prosecute a case of his own volition, this is one of the more controversial aspects of the ICC.

In the ICC’s history, this case was the first time the Prosecutor decided to investigate a case in this manner, with all prior cases being referred to the Court either by a national government, or by the United Nations Security Council.

On 15 December 2010, Prosecutor Luis Moreno Ocampo named six suspects, and made an application to Pre-Trial Chamber II for summonses to be issued to them.

The prosecutor presented the charges to Pre-Trial Chamber II as two separate cases, one case was the prosecution of Ali, Kenyatta, and Mathaura, and the second case is the prosecution of Kosgey, Ruto, and Sang. All six suspects were accused of crimes against humanity.

Indirect co-perpetrators

They were all accused of committing the crimes as indirect co-perpetrators at locations including Turbo town, the greater Eldoret area, Kapsabet town, and Nandi Hills town. Their charges were: Murder, constituting a crime against humanity in violation of article 7(1)(a) of the Rome Statute;  Deportation or forcible transfer of a population, constituting a crime against humanity in violation of article 7(1)(d) of the Rome Statute; Torture, constituting a crime against humanity in violation of article 7(1)(f) of the Rome Statute; Persecution, constituting a crime against humanity in violation of article 7(1)(h) of the Rome Statute;

Pre-Trial Chamber II ruled that there were reasonable grounds to be believe that William Ruto and Joshua Sang were criminally responsible as indirect co-perpetrators of the crimes outlined in counts 1, 3 and 4, but in the case of Joshua Sang it ruled that his involvement was not essential to the commission of the crimes and so only ruled that there were grounds to believe he otherwise contributed to the crimes.

On 8 March 2011, Pre-Trial Chamber II issued summonses to appear for all six of the suspects in the two cases.[45][46] As with the decision to authorise the investigation by the Prosecutor, Judge Hans-Peter Kaul dissented and opposed the issuance of summonses.

On 7 April 2011, the initial hearing took place in the case of Ruto, Kosgey, and Sang, and the following day the corresponding hearing in the case of Kenyatta, Ali, and Mathaura also took place at the seat of the Court in The Hague.

During the hearing, presiding Judge Ekaterina Trendafilova expressed concern at some of the actions of the suspects, in particular speeches that may have been made in an attempt to incite further violence in Kenya.

In June 2011, Pre-Trial Chamber II requested that the Prosecutor, defendants, and victims comment on the possibility of holding the confirmation of charges hearings in Kenya rather than in The Hague.

 The move was opposed by the Prosecution, who cited security concerns as an obstacle, and also by Ali, Kenyatta, Ruto, and Sang who cited the possibility that a change of venue would lead to delays in the trial process in submissions made to the Court. On 29 June Judge Trendafilova ruled that the hearings will take place at the seat of the Court in The Hague.

The hearing in the case of Ruto, and Sang took place in The Hague between 1 and 8 September 2011. The defendants had all filed applications challenging the jurisdiction of the court which were rejected by the chamber.

43 witnesses

Although the defence teams had initially proposed calling 43 witnesses to the confirmation of charges hearings the chamber instructed them to present just two witnesses each at the confirmation hearings, which they did.

The charge of murder as a crime against humanity was made by the prosecutor in relation to multiple attacks that took place in the aftermath of the election. The prosecution alleges that members of the network attacked Turbo town on 30 and 31 December 2007, resulting in at least 4 deaths and with one witness claiming that he saw more than 200 dead bodies.

Additionally the prosecutor alleges that network members attacked the Huruma, Kiambaa, Kimumu, Langas and Yamumbi areas of Eldoret, resulting in 70 to 87 deaths.

The prosecutor claims that the network forced residents of Turbo, Eldoret, Kapsabet and Nandi Hills to leave these areas by destroying homes and that in Turbo town homes and businesses were burned with petrol. Many residents fled to police stations and at one point 7,500 displaced people were sheltering at Kapsabet police station alone.

The crime of persecution as a crime against humanity is defined under the Rome Statute as “the intentional and severes deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity. The prosecutor claims that since the crimes of murder and forcible transfer of population were done against specific ethnic groups which were identified as supporters of the PNU, these crimes amount to persecution.

The outcomes of the confirmation of charges hearings were announced on 23 January 2012.  The chamber ruled by majority (with judge Kaul dissenting) to confirm all of the charges against William Ruto and Joshua Arap Sang.”

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