, NAIROBI, Kenya, Mar 16 -A dissenting ruling by Judge Hans Peter-Kaul at the International Criminal Court (ICC) still indicts the Ocampo Six suspects, as he says there is sufficient evidence to prove that some of them were involved in planning and coordinating the post election violence.
Judge Peter-Kaul said although he felt the crimes committed in Kenya do not meet the threshold of crimes tried at The Hague, he is satisfied by the evidence provided by Prosecutor Luis Moreno Ocampo that some of the suspects were involved in funding and organising the chaos.
In his ruling released on Tuesday evening, the judge agreed with the Prosecutor on a number of issues relating to the evidence provided.
Regarding charges against Eldoret North MP William Ruto, the Judge finds that there is sufficient evidence to prove that he funded the atrocities and even provided the fighters with guns and grenades to fight the opponents.
"I am satisfied that William Ruto made available guns, grenades and gas cylinders to selected perpetrators," the Judge states in his 28-page ruling.
"The evidence tends to show that William Ruto promised perpetrators monetary reward in exchange for the destruction of Kikuyu buildings and every Kikuyu person killed," the ruling states.
"I am also satisfied that William Ruto was part of the coordinating efforts prior to the outbreak of the violence in Uasin Gishu and Nandi Districts between 30 December 2007 to the end of January 2008."
Mr Ocampo had stated in his application that he gathered evidence showing that Mr Ruto distributed money to various groups in the Rift Valley Province where much of the violence and killings occurred.
"I am also satisfied by the evidence provided that William Ruto distributed money for training purposes," ruled the judge.
"The evidence leads me to conclude that, on account of his tribal and political position, William Ruto played a key role in managing the movement of money at the time," he concludes.
On Tinderet MP Henry Kosgey, the Judge said "The evidence also shows that Henry Kosgey distributed money to participants in meetings. The evidence reveals that the purpose of this money was to motivate people to attend the meetings and/or join in the violence, for bribery, to simply pay for food and drinks, entertainment or to reimburse transportation costs incurred by attending meetings."
According to the Judge, the evidence also tends to demonstrate that Mr Kosgey promised the perpetrators immunity for the crimes.
He however disqualified Mr Ocampo\’s evidence that the Kenyan military was involved in coordinating the attacks jointly with the political organisations in the Rift Valley.
"Before all else, I wish to note that the Prosecutor did not provide any information in the table supporting the allegations made in the Application with regard to the Military Branch of the "Network", as the information enlisted in the relevant part of the table appears to relate to the "Prosecutor\’s Application Pursuant to Article 58 as to Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali"," he said.
However, the judge said, "the Prosecutor\’s submission of the evidence on 23 February 2011, has allowed me to assess the allegations of the Prosecutor in the present case."
"Equally, the evidence does not demonstrate that the structures or facilities of the Kenyan Army were used in any way," he ruled.
With regard to radio presenter Joshua arap Sang Judge Peter-Kaul said the Prosecutor had presented sufficient evidence to show that he used his radio talk show "Lene Emet" to spread propaganda and instigate violence.
"I am also satisfied by the evidence provided that, in his daily talk show, Joshua Sang spread propaganda instigating violence against the non-Kalenjin populations and calling for their eviction," the judge ruled and added that "Evidence is also available that he urged listeners to take action, using expressions such as "vita imetokea (\’the war has begun\’)", "What are you doing at home?" and "What are you waiting for?", soon after the presidential election results were announced."
Mr Sang is among the six suspects who have been summoned to make an initial appearance before the pre-trial chamber judges on April 7 over their alleged roles in planning or funding the post election violence.
But overall, justice Peter-Kaul differed with his two colleagues and ruled that the evidence presented before the court had not met the threshold to warrant trial of the cases at The Hague.
"Regrettably, the Prosecutor failed to prove that the crimes were committed pursuant to the policy of a state-like \’organisation\’, which is an indispensable element and inherent characteristic of crimes against humanity under article 7 of the Statute," he ruled.
"In the absence of any evidence proving that the crimes alleged are embedded in an "organisational policy", I continue to hold that the Court has no jurisdiction ratione materiae over the situation in the Republic of Kenya, including the present case," he added and declined to issue summonses to appear for suspended Higher Education Minister William Ruto, Tinderet MP Henry Kosgey and Radio Presenter Joshua Sang.
The judge equally declined to issue summonses for Mr Kenyatta, Ambassador and Major General (Rtd) Ali who are also accused of planning the violence that left some 1500 people dead and half a million others displaced.
All the suspects have said they will honour the summonses which were due to be served to them officially on Wednesday by Police Commissioner Mathew Iteere.
Follow the author at http://twitter.com/momanyibernard