Ruto, Sang and Kosgey are facing accusations in the first Kenya case/FILE
In their submissions they asked the Pre-trial chamber not to confirm the charges while they discredited the prosecution evidence and its anonymous witnesses.
“The Prosecution has failed to discharge its evidentiary burden commensurate with the established standards on Confirmation of Charges,” the defence of Kosgey charged.
The three suspects also said their applications challenging admissibility and jurisdiction still stood out and the pre-trial chamber should consider them in their decision.
Kosgey’s defence argued in its submission that the prosecution over-relied on one anonymous witness – witness number 6 – whose evidence they termed as unreliable to confirm Kosgey’s charges.
“As the evidence of anonymous Witness 6 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 Mr Kosgey committed the crimes alleged. The Pre-Trial Chamber is therefore respectfully asked to decline confirmation of the charges against Mr Kosgey,” Lawyer George Oraro averred in his 44-page written submission.
He argued that the prosecution had also failed to reveal the identity of witness 6 and details of alleged meetings hence questioned his motivation to testify against Kosgey.
Sang’s lawyer Katwa Kigen in his 50-page written submission pointed out at inconsistencies in the prosecution evidence saying it did not enjoy credibility and trust also due to the use of anonymous witnesses.
“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 Prosecution’s case does not follow a clear and coherent line of reasoning and logic,” he argued in his submission rendered on Monday.
Kigen also said that the prosecution did not conduct independent investigations but relied on the Waki report and the Kenya National Commission on Human Rights investigations.
He also asked the chamber to rely on the disclosed evidence in its quest for a fair decision as he also submitted a 50-page document on behalf of Ruto.
“The Chamber may come to the conclusion that the post election violence in Kenya was not spontaneous but planned. However, whichever view one takes, whether the Post Election Violence was spontaneous or planned, the Prosecution has failed to demonstrate, to the required legal standard, a causal link between the violence and Ruto,” Kigen argued.
He said the prosecution based its evidence on speculation since even the alleged Network did not plan the attacks as he claimed the attacks were as a result of the disputed poll in 2007.
The defence lawyers gave detailed observations in their move to convince the pre trial chamber not to confirm charges against their clients when they announce their decision on December 24 this year.
This was in accordance with the deadline they were given by the court after the conclusion of the confirmation of charges hearings that ended on September 8.
Each of them was expected to submit up to 50 pages of their observations following the confirmation hearings process.
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