ICC Chief prosecutor Luise Moreno Ocampo
After the conclusion of the Confirmation of Charges Hearings in the Kenya Case II at The Hague, newspapers headlines in Kenya had a common theme that went like this… “Anxiety as the Ocampo Six begin the long wait for the Judges’ verdict.”
Indeed, it will be a period of anxious moments for Eldoret North MP William Ruto, Tinderet MP Henry Kosgey, radio journalist Joshua Arap Sang, Finance Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura and former Police Commissioner Hussein Ali as judges of the Pre-Trial Chamber II of the International Criminal Court (ICC) start their deliberations before they decide whether or not to commit the so-called Ocampo Six to trial on charges of committing crimes against humanity during the post-election violence in 2007/8.
Although the President of the Pre-Trial Chamber II, Madam Ekaterina Trendafilova, assured the suspects and Kenyans at large that theirs will be a fair verdict based on the evidence and issues canvassed during the confirmation of hearing, Kenyans are divided on opinion over which way the verdict will go.
Whereas everybody wants a verdict that would ensure that justice is done in view of the events of the post-election violence, many Kenyans are more emotional than reasonable about the confirmation hearings in both the Kenya Case 1, which involves Mr Ruto, Mr Kosgey and Mr Sang; and Kenya Case II that involves Uhuru, Amb Muthaura and Gen Hussein Ali.
Because of the emotions involved, many Kenyans could have blinded themselves to some realities concerning the ICC case that accuses prominent personalities of crimes that involve egregious violation of human rights.
However, if we allow reason to prevail by critically analysing the evidence and legal arguments presented during the confirmation hearing, then it may be possible to predict which way the verdict would go. In this regard, and in view of the evidence and arguments adduced during the confirmation hearings, Kenyans should prepare themselves to see the Ocampo Six committed to trial.
It may be a bitter pill for some Kenyans to swallow, but the better the country prepares itself for a full trial of the suspects the better.
Speaking on Jeff Koinage’s talk show, Capital Talk, upon conclusion of the confirmation of hearing of the Kenya Case II, ICC Chief Prosecutor Luis Moreno-Ocampo exuded confidence that the six suspects will be committed to trial.
“I don’t lose cases. You can check my record as a lawyer and you will find that I always succeed in what I do,” Mr Ocampo told Jeff.
Indeed, Moreno-Ocampo is a zealous prosecutor with distinguished credentials of a lawyer who goes after the ‘big fish’ and nails them. But the success of his case against the Kenyan suspects will not just depend on his CV as a zealous prosecutor elsewhere.
The crux of the matter is that the nature of international law and the evidential threshold needed to prove a case are heavily in favour of Mr Ocampo as far as the Kenyan cases are concerned. This partly explains why the prosecutor was exuding confidence at the end of the confirmation hearing.
Besides, Mr Ocampo’s team during the confirmation hearings did a sterling job of defending all elements of the prosecution’s case. However, the strength and success of Ocampo’s case rests in how he framed it and the evidence advanced to support it.
Let us, therefore, analyse the nut and bolts of the Kenyan case and see why it will go to full trial.
First and foremost, it is important to point out the different ways that a case gets to the ICC. The first way for a case to get the attention of the ICC is when a member state to the Rome Statute feels that certain crimes committed within its jurisdiction meet the necessary thresholds and applies to the ICC asking it to take up case citing reasons why the local jurisdiction cannot handle the case. This is how the Ugandan case involving the Lord’s Resistance Army (LRA) got to the ICC—the Ugandan government requested the ICC to take up the case and that it is how the ICC issued a warrant of arrest against the LRA leader, Joseph Kony, who is still at large.
The second way a case can get to the ICC is through a referral by the United Nations Security Council. The case involving crimes committed in Darfur got to the ICC as a result of a referral by the Security Council and that is how a warrant of arrest was issued against President Omar al Bashir of Sudan.
The third way a case gets to the ICC is by the ICC Chief Prosecutor acting propriomotu (acting on his own initiative). In this way, the Chief Prosecutor, upon receiving persuasive information that crimes that meet the ICC threshold were committed in a certain country, applies to the Presidency of the court seeking permission to pursue the case. Upon receiving the prosecutor’s request, the presidency of the court refers the request to the Pre-Trial Chamber asking it to analyse the request and if it finds it persuasive, grant the prosecutor the authority to proceed to investigate the case. This is how the Kenyan case got to the ICC, contrary to the belief that the Government of Kenya itself referred the case to the ICC.
It is, therefore, important to point out that the Kenyan case got to the ICC by the Chief Prosecutor’s own initiative (acting propriomotu) and conducting his own independent investigations without a referral from either the government of Kenya or the Security Council.
It is, however, important to note that the Kenyan case got to the ICC by default after the country failed to form a local tribunal to deal with crimes committed during the post-election violence as recommended by the Waki Commission report.
The case where the prosecutor acts propriomotu usually has many advantages because the prosecution has the leeway to conduct his own independent investigations, frame the case, decide who to charge and assemble his own cabal of evidence and witnesses. This is the reason Ocampo is exuding confidence with his case against the Kenyan suspects because this case is “his own.”
But there is something more—the Kenyan case, unlike other cases ever handled by the ICC or other international tribunals, has many live witnesses whose memory of what took place during the post-election violence is still very fresh. Ocampo’s case is also backed by the Waki Report which is taken to been authentic document because it was ratified by the Kenyan parliament. Above all, Ocampo’s cabal of evidence is also backed by authentic documentation from the National Security Intelligence Service (NSIS).
In this regard, despite the defence teams putting up a spirited fight against these sources of prosecution evidence during the confirmation hearings, the incriminating facts gathered from the Waki Report and the NSIS are things the judges cannot just ignore when deciding whether or not to commit the Kenyan case to trial. These documents contain very compelling information that would persuade any pre-trial judge to commit such a case to full trial.
Besides, looking at how the defence teams faired on during the confirmation hearings, even laymen noticed that most witnesses called by the defence teams ended up confirming the prosecution’s case. Many defence witnesses, despite seeking to exonerate the suspects, ended up opening many Pandora Boxes whose contents raise justiciable issues that can only be properly canvassed at a full trial.
For example, despite Uhuru Kenyatta doing a wonderful job of distancing himself from the outlawed Mungiki sect, MP Luis Nguyai who testified in Uhuru’sdefence destroyed that effort by confirming the very things that the Finance minister had attempted to distance himself from the previous day. In an attempt to show that Uhuru had association with Mungiki, Mr Nguyai, in fact, ended up revealing too much and virtually tying the Finance Minister to the outlawed sect. This was a terrible blunder by Uhuru’sdefence team to allow Nguyai to reveal too much—the pre-trial judges will certainly want this case to go to trial so that Nguyai’s association with Mungiki, on the one hand, and his ‘friendship’ with Uhuru, on the other, is clarified.
Besides, Uhuru himself raised issues that would easily prompt the judges to decide to commit the case to trial. For instance, in an attempt to deny that he attended a meeting where a plan to use the Mungiki for retaliatory attacks was discussed, Uhuru gave an alibi to the effect that he was at the Kenyatta International Conference Centre the whole day the alleged meeting took place.
But the problem with dropping alibis in a criminal case is that, an alibi needs to be corroborated by another witness (s). And since Uhuru gave an alibi, the judges will not just take his word—they will certainly need an opportunity for that alibi to be corroborated, and the only forum where such an alibi can be tested is a full trial. In this regard, Uhuru worked against himself by providing the judges with a reason to commit the case to trial.
Gen Ali’s witnesses also did little to help his case because his second witness, Mr Mohammed Amin, virtually rubbished what the first witness Mr Peter Otieno said. Likewise, Mr Muthaura’s first witness, MrKateeMwanza, ended up saying too much. In fact, Mwanza’s testimony significantly confirmed the prosecution’s theory about retaliatory attacks being undertaken by Mungiki.
What should, therefore, worry Mr Muthaura’s defence team most is the concern raised by Judge Ekaterina about Mr Mwanza’s testimony. It should be noted that at the tail end of his testimony, Judge Ekaterina asked Mr Mwanza to explain why his testimony before the Chamber contradicted what he told the Waki Commission. Such a question coming from the judge should give an indication of how the bench would treat the testimony the said defence witness.
The victims’ lawyers also did a wonderful job of reinforcing the prosecution’s case. It should be kept in mind that the institution of the ICC is victim-centred. Hence, all its trials are meant to bring relief to victims. In this regard, given the latitude that the judges gave the lawyers of victims during the confirmation hearings, there is no way the judges can fail to commit this case to trial.
However, this is not to say that the prosecution’s case was flawless. The defence did a good job of calling into question the credibility of the testimony of anonymous witnesses presented by the prosecution.
However, the attempt to poke holes in the credibility of the prosecution witnesses was an attempt in futility on the part of the defence teams because at any pre-trial stage, the substantive issues to be dealt with are the tribunal of facts and legal theories of the case and not the credibility of the witnesses. Analysing the credibility of witnesses is a function of a full trial, not a pre-trial. One can, in this regard, refer to the 2005 pre-trial hearing that involved child molestation charges against former pop star, the late Michael Jackson, to understand why it is futile to attempt to use the pre-trail stage to assault the credibility of a witness.
At the pre-trial stage in this case, the credibility of witnesses who claimed that Michael Jackson molested a minor was not the issue and the defence team even agreed with that position. In fact, Mr Jackson’s lawyer did not bother to contest the case at the pre-trial and instead opted to let the case to go to full trial where they did the wonderful job of demolishing the prosecution’s case at the full trial. The result was that Mr Jackson was acquitted at full trial.
In view of the issues canvassed at the confirmation hearings and the nature of international law, any serious analyst should come to the conclusion that the case will go full trial.
0 Comments