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Henry Kosgey and Hussein Ali were freed by ICC/CFM


Kosgey, Ali free at last in ICC saga

NAIROBI, Kenya Jan 23 – The fortunes of former Industrialisation Minister Henry Kosgey and ex-police chief Hussein Ali turned for the better on Monday, after judges at the International Criminal Court cleared them of crimes against humanity levelled against them.

The judges ruled that there was no sufficient evidence to commit the two to full trial for their alleged roles as direct co-perpetrators of violence meted on Kenyans in some parts of the country after the 2007 disputed presidential poll.

The judges said: “As to Mr Kosgey and Mr Ali, the chamber wishes to clarify that they are no longer suspects before the court.”


“In relation to Mr Kosgey, the chamber found that the prosecutor’s evidence failed to satisfy the evidentiary threshold required. The chamber was not persuaded by the evidence presented by the prosecutor of Mr Kosgey’s alleged role within the organisation,” presiding judge Ekaterina Trendafilova said in a majority ruling televised from The Hague.Kosgey largely walked free because the prosecutor had only relied on one anonymous witness whose evidence could not be corroborated.

She said: “The judges were particularly concerned that the prosecutor had relied on one anonymous witness and questioned the inconsistencies in dates Kosgey is alleged to have attended meetings to plan violence.”

“Moreover, the chamber determined that Mr Kosgey suffered prejudice due to the redaction of certain dates related to a number of meetings that he allegedly attended, which proved to be essential for his defence and for the finding on his criminal responsibility,” she said.

“In light of these facts and the entire body of evidence relating to Mr Kosgey’s criminal responsibility, the chamber declined to confirm the charges against Mr Kosgey,” the judge said in acquitting Kosgey.

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The judges said they were not satisfied with the evidence the prosecution provided to prove that police had participated in killings that occurred in various parts of the country, particularly Nakuru where hundreds of people were shot dead by the police. Evidence provided by the prosecutor had failed to prove that Ali had given shoot to kill orders.

“In relation to Mr Ali, the chamber found that the evidence presented does not provide substantial grounds to believe that the Kenya Police participated in the attack in or around Nakuru and Naivasha,” the judges said, adding that “Since Mr Ali was charged with contributing to the crimes through the Kenya Police, the chamber declined to confirm the charges against him.”

However, the prosecutor may choose to invoke article 61(80) of the Rome Statute which gives him the powers to present additional information to the court to seek for a confirmation of charges against the two acquitted suspects.

Thus the judges said: “The chamber recalls article 61(8) of the Rome Statute, according to which the Prosecutor may present additional evidence requesting confirmation of charges against Mr Kosgey and Mr Ali.”

In declining to confirm the charges against Ali and Kosgey, the judges said they were guided by all the principle of evidence.

“In reaching our decisions we have reviewed all the evidence individually and collectively, regardless of its source, firmly guided by the provisions of the court’s statutory documents,” they said. Ali and Kosgey have not publicly responded to the ruling.

Charges were however, confirmed against four other Kenyans, including two leading presidential candidates Uhuru Kenyatta (Deputy Prime Minister and Finance Minister) and Eldoret North MP William Ruto. The other two to face trial at the ICC are Head of the Civil Service Amb Francis Muthaura and Kass FM radio Presenter Joshua arap Sang.

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The judges said the prosecution had proved beyond reasonable doubt that the four had participated as indirect co-perpetrators in planning the violence that claimed the lives of some 1,300 people and displaced nearly half a million others.

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“With respect to the criminal responsibility of Mr Muthaura and Mr Kenyatta, the chamber was satisfied that the evidence also established substantial grounds to believe that they are criminally responsible for the alleged crimes, as indirect co-perpetrators, pursuant to article 25(3) (a) of the Rome Statute, having gained control over the Mungiki and directed them to commit the crimes,” the judge said.

On Ruto and Sang, the judges said Prosecutor Luis Moreno had satisfied the chamber that they indeed were indirect co-perpetrators of the crimes they were charged with thus “As to the criminal responsibility of Mr Ruto and Mr Sang, the chamber found, on the basis of the evidence presented, that they are responsible for the charges levied against them.”

In particular, the judges said “Pre-Trial Chamber II confirmed the charges against Mr Ruto as an indirect co-perpetrator with others, pursuant to article 25(3)(a) of the Rome Statute, while it found that Mr. Sang contributed to the commission of said crimes against humanity, pursuant to article 25(3)(d)(i), to the extent specified in the written decision.”

But Ruto immediately dismissed the charges and vowed they remain strange to him.

“Allegations against me will forever be strange to me. My legal team will move expeditiously to analyse the ruling and the actions to take,” Ruto told reporters at a press conference at his Karen home shortly after the ruling was announced.

Sang has too vowed to challenge the ICC ruling against him.

“It has come as a big disappointment for me because it means now that I will have to spend more time proving my innocence I did not expect this kind of a decision. I am disappointed and I disagree with it. I am definitely going to contest it,” Sang said.

Mr Muthaura, Mr Kenyatta and Mr Ali were facing charges of crimes against humanity which include murder, deportation or forcible transfer, rape and other forms of sexual violence, other inhumane acts and persecution.

Mr Muthaura and Mr Kenyatta were charged as indirect co-perpetrators, while Mr Ali was charged as having contributed to the said alleged crimes against humanity.

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On the other hand, the prosecutor charged Mr Ruto, Mr Kosgey and Mr Sang, for crimes against humanity of murder, deportation or forcible transfer and persecution.

Mr Ruto and Mr Kosgey were charged as indirect co-perpetrators, while Mr Sang was charged as having contributed to the said crimes against humanity.

Read a summary of the court’s decision here.

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