, NAIROBI, Kenya Jan 24 – Even though the Pre-Trial Chamber of the International Criminal Court (ICC) made a majority decision to indict four prominent Kenyans over the 2008 post-election violence, one judge Hans-Peter Kaul stuck to his previous opinion, saying the two cases did not warrant the intervention of the war crimes court.
Judge Kaul penned a dissenting opinion from the majority ruling by Judges Ekaterina Trendafilova and Cuno Tarfusser committing to trial four Kenyans and acquitting two others accused of having the greatest responsibility in organising the poll violence that claimed more than 1,300 people and displaced nearly half a million others.
The court has sent Uhuru Kenyatta, Francis Muthaura, William Ruto and Joshua arap Sang to trial over the violence, while it did not find sufficient evidence linking former Police Commissioner Hussein Ali and ex-minister Henry Kosgey to the violence.
Judge Kaul has issued dissenting opinions throughout the process of considering the Kenyan case. He first disagreed with his colleagues in the Pre-Trial Chamber II whether the Kenya situation met the threshold to be handled by the ICC.
Again, on March 15 last year, he declined to rule in favour of the issuance of summonses against the six Kenyan suspects, maintaining that although the evidence tabled showed clearly that crimes had been committed in Kenya he did not consider them sufficient to be subjected to the ICC process.
On Monday, Judge Kaul once again issued a dissenting opinion on the confirmation of charges, basing his arguments on his first ruling.
In his decision to dissent against confirmation against Kenyatta and Muthaura, judge Kaul said:
“I remain convinced and reiterate that the crimes and atrocities described by the prosecutor in the amended document containing the charges concerning Mr Muthaura and Mr Kenyatta fall within the competence of the Kenyan criminal justice authorities as a matter to be investigated and prosecuted under Kenyan criminal law forthwith,” Judge Kaul said adding “I join the victims participating in this case in their desire to see justice delivered.”
In his ruling, the judge was however quick to point out that “my dissent to the majority’s decision must not be misconstrued as any determination on my part as to the commission of crimes in the Republic of Kenya during the 2007/2008 post-election violence.”
“In fact, the defence arguments and evidence presented during the (confirmation of charges) hearing have not upset my views previously made in the 15 March 2011 dissenting opinion,” the judge stressed in his 193-page ruling.
He said the ICC lacks jurisdiction rationae materiae in the present case.
In his critical analysis of the Kenyan cases presented to the pre-trial chamber by Prosecutor Luis Moreno-Ocampo, the judge particularly felt that the six suspects presented before them could have been tried under national laws in Kenya.
He thus, concludes in his ruling that Ocampo did not present sufficient evidence to sustain charges against the Kenyans he wanted tried in The Hague, Netherlands.
“In sum, the chamber cannot satisfy itself solely with the evidence, which the prosecutor claims to be relevant and reliable, in order to effectively and genuinely exercise its filtering function,” the Judge said and went on to explain that “I feel barred, at least in principle, from pronouncing a view on the merits of the case, more specifically on whether or not there are substantial grounds to believe that Mr Muthaura and Mr Kenyatta committed the crimes charged, as required by article 61(7) of the Statute.
“Consequently, and secondly, I also feel barred from examining whether or not the prosecutor presented “sufficient evidence” within the meaning of that provision. Likewise, I feel barred from determining whether or not the numerous defence challenges to the prosecutor’s evidence pursuant to article 61(6)(b) of the Statute are well-founded and relevant,” Judge Kaul said.
In the case of Ruto, Kosgey and Sang, the judge raised what, in his opinion, are fundamental issues about the notion of the “organisation” as advanced by Ocampo.
“Unlike the majority, I consider the two issues raised by the defence to be sufficiently independent. The defence, in my opinion, has not made the assessment of facts a precondition to the interpretation of the notion “organisational policy”,” he observed.
At all events, Judge Kaul said, any assessment of facts logically implies that the court interpret the law first.
“In this respect, I observe that the majority decision addresses the defence arguments in the context of the applicable law relating to the notion of an ‘organisation’ without addressing the issue of insufficiency of evidence, thus disentangling the defence arguments,” he ruled.
He totally disagrees with fellow judges Trendafilova and Tarfusser on the fundamental issues raised by the defence, particularly during the confirmation of charges hearing.
He said: “The same independent treatment of issues advanced by the defence is evidenced in today’s majority decision on the confirmation of charges in the case of the prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua arap Sang. In that decision, faced with defence challenges on grounds identical to those pressed by Mr Kenyatta, the majority appears to acknowledge by implication as a matter of law that a challenge may raise the issue of a correct interpretation of a contextual element, such as the notion of ‘organisation’, since it rejected this part of the challenge on the merits.”
“At the same time, it dismissed in limine the issue pertaining to insufficiency of evidence. I therefore opine that at least the same disjunctive approach could have been adopted in the present case,” he ruled.
Rights of the defence
The dissenting judge also appears to have had a problem with Ocampo’s persistent demand opposing in depth examination of the prosecution evidence.
“I will, at first, deal with the prosecutor’s persistent demand that the Pre-Trial Chamber should not embark on an in-depth examination of the evidence, in particular the reliability and credibility of the prosecutor’s evidence.
Rather, he said, the chamber “should accept as dispositive the (prosecutor’s) evidence, so long as it is relevant,” leaving any analysis of the evidence to the Trial Chamber.
“While I concur with the majority’s view that this argument is not acceptable in light of the fundamental authority of the chamber to freely assess all evidence available, I find it necessary to provide some clarifying observations on the rights of the defence with respect to the confirmation of charges procedure,” the judge ruled.
He said he is also “firmly convinced that a proper understanding of these rights, especially in light of the purpose of pre-trial proceedings, is of fundamental importance not only in the present case but also in future pre-trial proceedings.” “Such a proper understanding is, in my view, indispensable for sound and fair decisions on the confirmation of charges pursuant to article 61 of the Statute.”
His ruling concludes; “I submit that it is therefore the duty of the prosecutor to conduct any investigation ab initio as effectively as possible with the unequivocal aim to assemble as expeditiously as possible relevant and convincing evidence which will enable ultimately the Trial Chamber to consider whether criminal responsibility is proven ‘beyond reasonable doubt.”
Unlike the two other judges, Kaul was not convinced, at all, that Mungiki can qualify overall as an ‘organisation’ within the meaning of article 7(2)(a) of the Statute. He had maintained the same opinion in his earlier dissenting opinion issued on March 15, 2011.
In his analysis, the Mungiki, like many other criminal gangs in Kenya or elsewhere, remain a somewhat structured, outlawed, violent criminal gang engaged in organised crime and deriving revenues from the illegal provision of certain community services to the local population, mainly in the slums of Nairobi.
“In light of the foregoing, I take the view that the Mungiki cannot qualify as an ‘organisation’ within the meaning of article 7(2)(a) of the Statute. Accordingly, they fall outside the scope of the Statute,” he again wrote in his dissenting opinion Monday.
“The foregoing leads me to conclude that had the Kenyan police allegedly not abstained, had the Mungiki not received money, uniforms and weapons, and had they not been transported to different parts of the country, they would not have been able to launch the alleged large-scale attack against Kenyan civilians over a large geographical area,” he said.
“Even if, arguendo, the Mungiki “relied on external funding” in the “commission of particular crimes”, their need for financial support, regardless of its extent, shows that they do not have sufficient means to commit crimes on a large scale. Therefore, I am at pains to understand how this ‘organisation’, heavily dependent on outside logistical support, could satisfy the criteria I set out in my 31 March 2010 dissenting opinion to the extent of qualifying as a State-like ‘organisation’ or any other ‘organisation’ with the capability, including the means, to target the civilian population on a large scale,” he ruled.
More importantly, he said, in light of the majority’s finding excluding the Kenyan police from the ‘organisation’, I have serious doubts whether, having been deprived of the second pillar in the ‘organisation’ structure, the Mungiki could have launched on their own a widespread or systematic attack against civilians, as the Prosecutor maintains.
The judge was not convinced that Mungiki and the Kenya police had what the prosecutor describes as State-like ‘organisation’ for them to have committed large scale atrocities in the country.
Muthaura, Kenyatta and Ali were accused of crimes against humanity which include murder, deportation or forcible transfer, rape and other forms of sexual violence, other inhumane acts and persecution.
Muthaura and Kenyatta had been cited as indirect co-perpetrators, while Ali was named as having contributed to the said alleged crimes against humanity.
On the other hand, the prosecutor accused Ruto, Kosgey and Sang, for crimes against humanity of murder, deportation or forcible transfer and persecution.
Ruto and Kosgey were named as indirect co-perpetrators, while Sang was cited as having contributed to the said crimes against humanity.