NAIROBI, Kenya, Sep 10 – Lawyer Katwa Kigen on Thursday said he will challenge the latest move by International Criminal Court (ICC) Prosecutor Fatou Bensouda to introduce alternative charges in the case against journalist Joshua arap Sang.
He opined that the move to re-characterise the case midway the trial was an indication that the prosecutor had realised that her case against Sang was weak.
“Definitely we will be opposing because it is too late in the course of the case,” Kigen said.
“I can only speculate that it’s because the prosecution feels like it has not been able to prove the case they had originally intended to make against Sang and they are now trying to see if there is an alternative that can hold.”
In the application Bensouda has notified Trial Chamber V (a) that she intends to use same facts of the crimes Sang is facing to accuse him of alternative charges.
“They are not adding new charges, what they want to do is a sort of an alternative count based on the same set of facts. It is something like changing a count of murder to manslaughter or changing a count of robbery to theft,” he explained.
Sang was indicted in 2011 on three counts of crimes against humanity of murder, forcible transfer of population and persecution.
These are the three counts that Bensouda now wants to amend to argue the charges against the journalist.
According to a legal expert who asked for anonymity, the prosecution could have realised that the evidence it has is not solid enough to sustain the three charges.
In the expert’s view to prove such charges, ‘the prosecutor is tasked to produce evidence that can prove beyond reasonable doubt the criminal responsibility; that indeed the accused committed those crimes.”
Kigen criticised Bensouda’s move as unfair in view that the case was already at the tail end. “It is so unfair to seek the amendment when we have gone this far in the case.”
The prosecution concluded its list of 29 witnesses but was granted an application seeking to apply amendment to Rule 68 that allows use of prior recorded statements of five witnesses who recanted their evidence.
Defence teams of Deputy President William Ruto and Sang have however asked for leave to appeal the decision that has caused uproar and discontent.
In the latest application, Bensouda wants the court to notify Sang of the prosecution’s intention to amend his case and also get views before the defence files a motion of no-case-to-answer.
Parties in the case are expected to make their submissions on the latest application.