, NAIROBI, Kenya, Jan 4 – A legal expert has predicted that the refusal by the International Criminal Court (ICC) to confirm cases against Rwandan rebel leader Callixte Mbarushimana could have a bearing on the two Kenyan cases.
Lawyer Moses Chelanga told Capital News that there are parallels to be drawn for the Kenyan cases from the ICC Pre Trial Chamber’s ruling declining to confirm charges against Mbarushimana, identified as the Executive Secretary of the (Democratic Liberation Forces of Rwanda) FDRL during armed conflict in the DR Congo in 2009.
In mid December, Pre Trial Chamber judges Sylvia Steiner and Cuno Tarfusser ruled that there was no sufficient evidence to establish substantial grounds to believe that Mbarushimana could be held criminally responsible for the charges against him.
Tarfusser is one of the three judges currently considering the two cases against six prominent Kenyans. The court is due to deliver its ruling by January 19.
Chelanga said: “There were so many anonymous witnesses on whom the prosecutor placed reliance; from the Mbarushimana case their evidence has been accorded low probative value.”
“In the Kenyan case against Uhuru Kenyatta some of the witnesses are said to have been members of the Mungiki; the court deals cautiously with insider witnesses,” noted the lawyer.
Another issue key in the decision to confirm or reject the charges hinges around the contradictions and inconsistencies arising from statements from witnesses and the reliance by the prosecutor on reports of lobby groups and other inquiries.
Chelanga is also of the opinion the fact that Tarfusser poked holes in the prosecutor’s case against Mbarushimana coupled with the presence of Hans-Peter Kaul who had initially declined to grant Luis Moreno Ocampo authority to lodge the Kenya case could tilt the Kenya cases.
“With reservations of what happened during the private proceedings, and knowing the opinions of some of the judges on similar matters I believe the case may not be confirmed,” Chelanga said adding that his observations excluded the knowledge on proceedings that went on in camera.
“Cases are determined on a case-to-case basis and depending on the facts before the courts but the legal principles remain the same. The prosecutor already had difficulties explaining whether there were organisations known in the two cases,” he added.
Mbarushimana had been charged with 13 counts, five of crimes against humanity which included murder, torture, rape and eight counts of war crimes including attacks against the civilian population.
The Prosecution had wanted Mbarushimana charged for publicly denying any responsibility of the FDLR for the killings while he had full knowledge of the attacks perpetrated by the militia.
Deputy Premier Uhuru Kenyatta, Eldoret North MP William Ruto, Tinderet MP Henry Kosgey, Head of Civil Service Francis Muthaura, Former Police Commissioner Hussein Ali and radio presenter Joshua Sang who are suspected of indirectly perpetrating crimes against humanity will know the fate of their cases later this month.
Ruto together with Kosgey are suspected of being criminally responsible as indirect co-perpetrators pursuant to article 25(3)(a) of the Rome Statute for the crimes against humanity consisting of murder, forcible transfer of population and persecution.
Sang is suspected of having otherwise contributed to the commission of the murder, forcible transfer of population and persecution but not as an indirect co-perpetrator.
Kenyatta, Ali and Muthaura are allegedly criminally responsible as indirect co-perpetrators for the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts.