By MIGUNA MIGUNA
There has been unnecessary anxiety and concerns regarding the ruling by the Pre-Trial Chamber II on the appeal the ICC Prosecutor filed a few weeks ago. In my view, that ruling is legally sound. But more importantly, it doesn\’t weaken Moreno-Ocampo\’s case against the six individuals. Here is why.
The Prosecutor had appealed mainly on two grounds. Firstly, he believed that when the Court refused to consider the crimes allegedly perpetrated by Uhuru Kenyatta, Hussein Ali and Francis Kirimi Muthaura against unarmed civilians in Kibera, Naivasha, Nakuru and Kisumu – through Mungiki and the Kenya security agencies – as part of "a widespread and systematic attack against the civilian population carried out by State or organisational policy;" they had erroneously excluded police culpability in those crimes.
And secondly, he believed that when the Court refused to categorise forced circumcision as "a sexual crime;" it had weakened the case against those accused of having perpetrated the same.
However, Justice Ekaterina Trendafilova, on behalf of the Pre-Trial Chamber II, denied the Prosecutor\’s leave to appeal because:
(a) The Prosecutor hadn\’t argued and presented evidence of "State or organisational policy" or that a finding that such a "policy" is essential for a determination that crimes against humanity were committed by State or non State actors using State and/or non-State actors;
(b) That the Prosecutor had misconceived the provisions of the Rome Statute as well as misapprehended the majority judgment of the Pre-Trial Chamber II on March 8, 2011; and
(c) That the concerns raised by the Prosecutor with respect to the prejudice allegedly caused by the March 8th decision have no grounds in law.
As a consequence, the Judge ruled that the Prosecutor hadn\’t raised genuine issues that needed determination at appeal.
I believe that the judge\’s ruling is based on firm legal grounds. The ruling doesn\’t prejudice Moreno-Ocampo’s case against the three named individuals.
At the very outset, let me say this: The Ocampo Six haven\’t been summoned to answer charges for the alleged crimes. The appearance is a formality for identification and other routine purposes. The Ocampo Six will be arraigned and put to their defence only after the charges have been confirmed through lengthy and fair confirmation proceedings. That is still a long way away; in September this year.
Meanwhile, the Prosecutor can still provide additional evidence with respect to these alleged crimes before the confirmation of charges hearing. However, given the admissibility challenge, the ICC investigations are formally suspended under Art. 19(7) of the Rome Statute until the admissibly issue is resolved. But the Prosecutor has the option of seeking the Chamber\’s authorisation for exceptions from the suspension as provided by Art. 19(8); for example, investigations with respect to admissibility, finalization of witnesses\’ interviews that began before the challenge, examination of evidence that had begun prior to the making of the challenge, et cetera.
On March 8, the Pre-Trial Chamber found and ruled, as fact, that the Prosecutor had submitted sufficient evidence to support his allegation that Uhuru Kenyatta, Francis Muthaura and Hussein Ali had committed widespread crimes against humanity.
But the Chamber also concluded that the Prosecutor had not presented before the Court sufficient evidence that the crimes alleged had been committed as part of executing "state policy". Remember those memos, minutes and documents that the Prosecutor requested from key security agents and agencies but which were never handed over? Well, Moreno-Ocampo needed them to establish what "state policy" was with respect to the use of lethal force against unarmed and peaceful civilians.
The ruling in this regard doesn\’t water down the Prosecutor\’s case against Uhuru, Ali and Muthaura as sections of the media had assumed. The Court\’s ruling – which was made without prejudice to the Prosecutor – was that there wasn\’t evidence before them of such a policy. The Chamber ruled that the Prosecutor was free to present such evidence before the trial begins. That opens the door for ongoing or further investigations.
However, more significantly was the unanimous ruling – including by the dissenting judge – that the Prosecutor had presented before the Court enough evidence to support the charge that Uhuru, Muthaura and Ali used the Mungiki and elements within the police force to perpetrate the crimes alleged. The Court established that the crimes alleged were committed by the three; that the crimes met the threshold set by the Rome Statute; and that the Court has jurisdiction over those crimes.
In other words, the Pre-Trial Chamber II, by a majority decision, found that the state was still implicated in those crimes. That is because even if it were assumed that there was no state policy; evidence showed that the state was both unwilling and/or unable to prevent the crimes from being committed by the three accused persons.
On the issue of forced circumcision, the Chamber\’s ruling dated March 8 was that whereas the Prosecutor had not been able to convince it that such criminal acts were "sexual in nature;" they were highly degrading and inhumane, thereby amounting to a crimes against humanity. All Moreno-Ocampo had requested was for the crimes to be categorised as both inhumane and degrading acts that were sexual in nature. The Chamber only removed the word "sexual in nature."
In a way, the substance and seriousness of the allegations and charges remain. Those asserting that Moreno-Ocampo\’s charges against the three individuals have been weakened don\’t know what they are talking about. If convicted of the specified charges, the Ocampo Three will still serve life sentences.
Judge Trendafilova\’s ruling that supporters of the Ocampo Six have latched onto was that the Prosecutor had misconceived and misapprehended the Chamber\’s decision of March 8. She argues, persuasively, that the decision of March 8 doesn\’t prejudice the Prosecutor\’s case. In fact, the entire Court was satisfied that the Prosecutor had presented adequate evidence regarding the culpability of all the six individuals.
Until the confirmation hearings take place, there isn\’t need for worry or anxiety. We must, however, bear in mind that the Court has never failed to confirm charges in cases where the entire panel agrees that the evidence against the accused persons is substantial.
The dissenting judge isn\’t of any help to the defence because; his decision was even more stinging to the Ocampo Six. Significantly, he only raised jurisdictional and admissibility issues. These are technical legal matters, which will be resolved in short order, through the incompetent admissibility challenge filed by the PNU/KKK faction within government.
In other words, there was a unanimous finding on the evidence and culpability. All three judges agreed that the Prosecutor has enough evidence against the Ocampo Six.
They also agreed that the charges the Prosecutor has preferred are sustainable. In my view, it would be difficult (near impossible) for the Confirmation Chamber to over-rule the Pre-Trial Chamber, which examined all the evidence. Doing so would negatively affect the confidence people have in the Pre-Trial Court. As stated elsewhere, the admissibility challenge cannot succeed.
Miguna is the PM\’s advisor on Coalition Affairs. The views expressed here are his own.