NAIROBI, Kenya, Feb 2 – The most memorable moment in his career was when the defence team of Henry Kosgey got an opportunity to present its case to the Pre-Trial Chamber II of the International Criminal Court (ICC).
But the climax was Monday January 23, 2012 when the judges returned a verdict indicating that Kosgey would not be committed to trial for the 2008 post-election violence.
Forty two-year-old Julius Kipkosgey Kemboy was the instructing counsel in Kosgey’s defence team in the ICC process.
He was all smiles and elated when we caught up with him at his Riverside Green Office Suites on Nairobi’s Riverside Drive. But one thing that struck me was his sense of humility.
He recalls that the Ruling was delivered to them barely a few minutes before the ICC judges walked into court to make their decision public.
“Even as the judges were walking into the court to give the televised proceedings, we were struggling to open the PDF document; we were scrolling down to the bottom to see the decision,” Kemboy remembers.
“We actually only knew the outcome as she (judge Ekaterina Trendafilova) began reading her televised press release.”
The day had started early for Kosgey’s legal team who gathered at the office of the Lead Counsel George Oraro.
“As the time went by, anxiety grew. When it came we all jumped up and hugged. The client took a little while for it to sink,” he recollects.
This was Kemboy’s first time to handle a Criminal case at an international level, and he says the journey was torturous.
“We had done international civil cases and commercial disputes before but this was the first time and the most serious criminal defence we had to do,” he explains.
They put in a lot of hard work and made difficult decisions that sometimes were a controversy amongst themselves and the client including his family and constituents.
Kosgey approached Kemboy in December 2010 seeking legal advice after the ICC summoned the six Kenyans suspected of masterminding the 2008 post-election violence in Kenya.
“We engaged after the summonses were issued. I got somebody to lead us when I looked at the extent of the work that was involved and the seriousness of the charges,” he recalls.
Kemboy consulted George Oraro to lead Kosgey’s defence. They also enrolled the legislator’s son Allan Kosgey to be part of the team and three UK consultants led by Matthew Ryder. They also employed Hague-based Liane Aronchick as Case Manager and Gissou Nia as Legal Assistant.
The ICC Prosecutor had sought to charge Kosgey with murder, forcible transfer of populations and persecutions.
Together with local legal experts and defence investigators, the team first organised their defence strategy and also familiarised itself with the ICC system which according to Kemboy is totally different from that of Kenyan courts.
“The jurisdiction of the ICC court is totally different from ours. In Kenya, you have the defence on one side and the prosecutor on the other side. You do your thing and the court just sits and makes up their mind on who does what,” Kemboy explains.
Under the Rome Statute however, the court takes the responsibility of trying to find the truth. It is involved in everyday affairs of managing the case. It is concerned with disclosure of evidence. It decides what should be disclosed and what should not be disclosed.
One of the most unique things about the court is also the communication and filing of documents using their E-Court system which the defence had to learn as they prepared to shred Ocampo’s evidence during the confirmation of charges hearings in October.
“There is a whole regime of disclosure of evidence that was set by the court when the six showed up during the initial appearance. There is a structured way which you are given and you respond according to that structure.”
The Hague, the ICC and Ocampo were of course words with gravity in Kenya. To the suspects and their defence they were a real headache and a puzzle to crack.
Kemboy concedes that the mere fact that the court is in a European country was in itself overwhelming.
“Of course it is daunting when you appear there. It is a court sitting in a European capital… you are from Africa. You arrive there and you don’t know what perceptions the court has because of the observation that we are people who butcher each other, or where bad things happen. It’s really daunting,” he recalls.
The Senior Partner of Kemboy & Ogola Advocates says that the defence gathered the best remedies of success and courage to ensure they did not lose their focus on winning Kosgey’s case.
Though he knew the case against Kosgey was not a walkover, the father of three clinched on his goal of demostrating his client’s innocence.
“It was a very difficult case. There are very few people who have gone to the ICC and have gone out at confirmation stage. We were a bit apprehensive. But like we decided, we would put our best foot forward and left it to the court to decide,” he remembers.
One thing that most Kenyans and probably the ICC must have observed is that Kosgey maintained a low profile since he became a subject at the court.
It now emerges that it was a strategy advised by Kemboy and his fellow defence lawyers.
“The first thing we did was to have a session with our client. We told him; you are faced with a legal problem which needs a legal solution; the offence of crimes against humanity itself is such a serious offence that it is in the nature of things that shock humanity not just Kenyans.”
Kemboy asked him to recognise that the crimes he was alleged to have committed were facts of the 2008 post election violence that left people dead and others suffering.
“Even as you claim your innocence you should show some humility. Your conduct should be able to demonstrate your appreciation for the seriousness of the offence. That way we will be able to get a defence for you,” was his advice to his client.
The low profile was also another strategy of not provoking the ICC. Kemboy appreciates that his client heeded the advice throughout the process.
“The court is also conscious. You do not aggravate the court, the victims and also the witnesses, because if you are rubble rousing and whipping up emotions, there is a sense that, that conduct maybe seen as brazen,” Kemboy advised Kosgey at the time.
“It does not show humility even for the fact that you are before a court. It may also be taken to be an act of impunity trying to intimidate the witnesses and really laugh at the victims,” the lawyer further explains.
Another strategy employed by Kemboy and his colleagues was to advise Kosgey not to call witnesses during the confirmation of charges hearings.
Kemboy reveals that they also received alot of guidance from the ICC’s Office of the Public Counsel for Defence which is a department that is charged with advising defence teams.
The idea of not calling live witnesses was however not popular with the client’s family, friends and close advisors.
“Our training is if you want to prove a case, you have to bring a witness. It was even difficult for us to explain to our client that we would not be calling any witness. He told us he had difficulty explaining to people at home because he is a politician. People were telling him, you want to be jailed? How come you have no witness?” he recalls.
But ICC Prosecutor Luis Moreno Ocampo decision not to call any live witness was a blessing in disguise for their team. They could confidently explain to the client that he had no business calling live witnesses to give testimony when the Prosecutor had no live witnesses of his own.
“We saw that the prosecutor himself did not call witnesses. If he was keeping them from us, why should we give him the opportunity to know our witnesses or even cross examine them? He was not telling us who his witnesses are, we could not ask them questions,” he says.
Kemboy also learnt that bringing in live witnesses could easily create confusion and muddle up their defence.
“We give him a witness who he will question and become part of the record, and the evidence from our witness can actually contradict our own defence. So we actually stand the risk of giving out a witness who is supposed to be helping your case but is being used by the court to enhance the case against you.”
Another strategy that Kemboy used in Kosgey’s defence was only picking a team of Kenyan lawyers.
“If you have Kenyan lawyers, a lot of these facts are in their finger tips. Even as you guide your investigators you can tell them where the offences are alleged to have been committed and they easily understand. They know what is relevant and what is not. Kenyan lawyers are equally trained, we read the same books as foreign lawyers,” Kemboy explains.
During the confirmation of charges hearings, Kemboy says that their defence was on numerous times told by the court to slow down in their presentation.
“In Kenya we are used to speaking as much as we want, but there, they use recorders so you have to slow down, meaning you also slow down your thinking process.”
He also says some of the evidence presented in court by the prosecution team was simply “outrageous.”
“The more the prosecution relayed their case, the more you would wonder if they were talking about the same events that we witnessed here (Kenya),” he recounts.
Overall, the advocate appreciates that a chance to represent a client before the world court was both humbling and eye-opening and that above all, justice was done in respect of their client.
“We have learnt a lot not just for our own purposes but even for the purposes of making suggestions to our own Judiciary on how to manage the filing statements, the exposure to international systems, how a court of law should be equipped and function. We filed many applications electronically,” he says.