Why ICC judge rejected Kenyan case

March 15, 2011 12:00 am

, NAIROBI, Kenya, Mar 15 – The International Criminal Court (ICC) Judge who disagreed with the majority ruling to issue summonses against six alleged perpetrators of the 2008 post election violence in Kenya says the crimes committed can be dealt with in the country\’s justice system.

Judge Hans-Peter Kaul said he was not convinced by Prosecutor Luis Moreno Ocampo that the crimes committed in Kenya meets the threshold of crimes against humanity.

"Consequently, I have no doubt that the crimes alleged in the application concerning Francis Muthaura, Uhuru Kenyatta and Mohammed Ali fall within the competence of the criminal justice authorities of the Republic of Kenya as a matter to be investigated and prosecuted under Kenyan criminal law," Judge Kaul said in his ruling posted on the ICC website on Tuesday evening.

He said he was not satisfied with explanations given by Mr Ocampo who had based much of his investigations on human rights reports and excerpts from press publications obtained in Kenya.

"The Prosecutor supported his application, to a large extent, with the same public reports of non-governmental organizations and commissions that he already submitted on 26 November 2009 when seeking the chamber\’s authorisation for the commencement of the investigation into the situation in the Republic of Kenya pursuant to article 15 of the Statute," he said.


Additionally, he said, the Prosecutor submitted a table, following the structure and language of the application, which contained only excerpts or a series of sentences, selected by the Prosecutor, from witness statements, reports, press articles and other material. Pursuant to a decision of the Chamber, on 23 February 2011 the Prosecutor provided the Chamber with audio-recorded or written statements of those witnesses on whose statements he relies in the present Application. He also submitted additional related material.

"On the basis of the Prosecutor\’s presentation of the case and the evidence submitted, I fail to see how an \’organisation\’ could have existed in which the primary actors were the Mungiki gang and the Kenyan police forces," he said.

However, the judge said he was in agreement with Ocampo\’s proof that Deputy Prime Minister Uhuru Kenyatta was the principal contact between the Mungiki criminal gang which is accused of having killed hundreds of people as well as destroying their property.

"I am satisfied by the evidence provided that Uhuru Kenyatta was the principal contact between the Mungiki gang and the principal perpetrators," he ruled.

He added "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.

The judge argued that forging an opportunistic partnership of convenience for a specific purpose, namely the upcoming 2007 presidential elections, tends to demonstrate that the coalition between the Mungiki and the Kenyan police forces was created ad hoc in nature.

"The fact that the \’cooperation\’ between the Mungiki gang and the Kenyan police forces was established shortly before the 2007 presidential elections tends to demonstrate the temporary character of this partnership of convenience," he observed after analyzing the evidence presented to them by Ocampo.

In his evidence, Ocampo had observed that there was coordination between the police and Mungiki operations before, during and after the general elections which culminated into deadly violence leaving at least 1500 people dead.

"Additionally, the evidence leads me to conclude that the Mungiki gang and the Kenyan police forces do not share a common hierarchy but rather maintain separate structures. I therefore conclude that the \’organisation\’ as presented by the Prosecutor, consisting mainly of the Mungiki gang and the Kenyan police forces, did not exist," he ruled.

Last week, two of the judges of the pre-trial chamber ruled by majority that there was sufficient evidence to try the six suspects named by Ocampo for planning or funding violence in Kenya and has already issued summonses ordering the six suspects to appear on April 7.

The summonses were delivered to Attorney General Amos Wako on Monday and he has since directed Police Commissioner Mathew Iteere to serve the suspects accordingly.

Those to be served with the summonses include Finance Minister Uhuru Kenyatta, the Head of the Civil Service Francis Muthaura, and former Police commissioner Hussein Ali.

Others are suspended Higher Education Minister William Ruto, Henry Kosgey who served as Industrialisation Minister and Radio presenter Joshua arap Sang.

They have all expressed willingness to make the initial appearance at The Hague as directed.

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