NAIROBI, Kenya, Jan 10 – By the end of next week, the six Kenyans who are facing charges before the International Criminal Court will know whether their cases will proceed to trial.
The presiding judge at the ICC Pre-Trial Chamber II Ekaterina Trendafilova and her colleagues Hans Peter-Kaul and Cuno Tarfusser will determine whether they think the prosecutor presented sufficient evidence for the charges to be confirmed.
According to international lawyer Godfrey Musila, “the standard of the evidence required in the Rome Statute is substantial ground to believe the suspects committed the crimes they have been charged with.”
In the first case, MPs William Ruto, Henry Kosgey and radio presenter Joshua arap Sang are facing three counts each of murder, forcible transfer of population and persecution of perceived supporters of President Mwai Kibaki in the 2007 General Election.
On the other hand, Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura and Postmaster General Hussein Ali, are facing five charges each for murder, rape, forcible transfer of population, persecution and other inhumane acts during the 2008 post election violence that left 1,333 people dead and 350, 000 others displaced.
Musila explains that the judges can deliver four possible verdicts:
1. The judges can confirm charges against some suspects, and set others free “Because criminal responsibility is not group responsibility although they have been charged into groups, it is individual criminal responsibility. One or two people in each of the cases may walk free,” he said. It is also possible to have all three individuals in a particular case set free.
2. The judges can reject some of the counts against individual suspects and confirm others “for example out of the five charges against Kenyatta, three could be thrown out, leaving him with two,” said Musila.
3. The three judges can confirm the charges but request the prosecutor to amend them. For example, the chamber can grant Prosecutor Luis Moreno Ocampo’s wish to include additional charges of rape in Kibera and Kisumu against Muthaura and Ali.
Civil society groups have also been asking for inclusion of rape charges in the first case against Ruto, Sang and Kosgey.
Human Rights Watch Researcher for Africa Division Neela Goshal feels that the prosecutor should not have left out rape charges in the first Kenya case.
“It’s very difficult to investigate rape but it is not impossible. We have spoken to rape victims who have identified the perpetrators, they got tested, there is evidence rape took place. For instance in Kibera, sure they raped people within homes and their neighbours are witnesses and they saw what was going on; the evidence is there to prosecute people for rape,” She told Capital News.
International Commission of Jurists Programme Officer Judy Gitau has also complained that the prosecutor left out destruction of property charge yet it was quite evident in the post election violence.
She hopes it is one of the charges the prosecutor may consider for inclusion to the ones he has presented before The Hague based court.
Musila says the judges can advise the prosecutor, “to include charges to reflect other geographical spaces. Remember victims have made representations. They can say, ‘we come from this place we think that some people should be prosecuted for the things that happened there. The judges can actually listen to the victims in that regard.
4. The judges can drop all the charges pressed against the six suspects. Musila says the judges can decide that prosecution evidence was insufficient to meet the threshold and reject all the charges for the six suspects.
“The Prosecutor has an option of coming back and doing more investigations but this is unlikely to happen. In the previous case where this happened, the Prosecutor did not do any more investigations; that will be the end of the case,” he explains.
Just about three weeks ago, the prosecutor lost an appeal after the court threw out charges against Rwandan rebel leader Callixte Mbarushimana.
He has not expressed any possibilities of carrying out further investigations on him, probably looking at his retirement mid this year.
According to the lawyer, that may mean the end of the case bearing in mind that Ocampo is retiring. But still one cannot presume that his successor Fatou Bensouda is disinterested in the Kenyan case.
“If he is confident with his cases, he can still come back, but because he is retiring it maybe the end of the case. But what Kenyans don’t know is that Bensouda has been working behind the scenes, she may decide if the case fails, ‘I want to take it up,” he asserts.
Whereas Libya and Sudan were referred by the UN Security Council, Uganda, the Central African Republic and the Democratic Republic of Congo referred themselves to the ICC. In the Kenya case, Ocampo moved on his own volition to investigate Kenya.
This, according to Musila, could be the driving force for Bensouda to see the Kenyan case as an ICC project that should not fail.
“If the judges throw out the charges, they (prosecutor’s office) would be quite obstinate to want to prove that they were right from the start. And because Fatou was there from the start, she shares equally the blame to Ocampo but also any success.”
ICC Spokesperson Fadi el Abdallah maintains that ICC is impartial in its operations and does not target any groups but individuals who are suspected to bear the highest responsibility of crimes committed.
This means the decision from the court will be independent of any interference, whether political or not.
“ICC is a judicial institution. There is no possibility to take political consideration to account when judges are deciding. The ICC only deals with the persons suspected of being the highest responsible for mass crimes, and these people are not ordinary people,” Abdallah clarifies.
Author: JUDIE KABERIA 
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