In a 31-page document, lawyers Evans Monari and Gerishom Otachi still believe the crimes committed during the post election violence do not qualify as crimes against humanity and that there was no substantive evidence linking their client to the alleged crimes.
They assert that there was no State-like organised group that attacked people during the violence and now want the court to reject confirmation of the charges against Ali saying he did not commit the alleged crimes.
“The prosecution led by Moreno Ocampo failed to prove any of the requisite elements of an organisation and has not and cannot even describe the make-up of such a group.”
They say the descriptions of the structure of the ‘group’ involved are inconsistent, creating doubts as to whether the group included the Mungiki, the PNU and pro-PNU youths, businessmen, the police or some combination of the mentioned groups.
They further allege that the Prosecutor had not manage to prove to the court that the involvement of their client in the perceived group was made either with aim of furthering the criminal activity or he did so in the knowledge that the intention of the group was to commit the crime.
Article 25 (3) (d) (II) of the Rome Statute says that a person shall be criminally responsible for crimes within the jurisdiction of the court if they contributed to the commission of the crimes with aim of furthering criminal activity or with knowledge of the intention to commit the crimes.
The lawyers argue the prosecution had failed to prove that the court had personal jurisdiction over Ali because the crimes alleged against him “do not constitute crimes against humanity.”
“This case is dismissible for want of sufficient gravity as defined in Article 17. Most important, none of the evidence submitted by the prosecution supports any of its alleged arguments as to either jurisdiction or admissibility,” the two argue.