The lawyer at the start of convincing ICC judges to drop charges against Sang disproved the prosecution’s position that there was a network formed ahead of the 2007 elections with a common plan to execute attacks in the Rift Valley.
“We are saying there was no network. We are told there is a specific organisation in the mind of the prosecution.”
He said the prosecution had failed to submit evidence to support allegations that such a network existed.
In his view, to prove existence of the network, the prosecution should have at least furnished the court with details of the meetings of the group, its policies and plans.
It was on the basis of the non-existence of the group and the alleged contribution of Sang that Kigen explained that his client did not have any criminal liability in the attacks.
Sang is alleged to have contributed to the activities of the criminal network in seven different ways.
The major one includes his advantage as a journalist with a radio programme, which he allegedly used to advertise activities of the network especially informing direct perpetrators on the plan of attacks and meetings.
Kigen argued that Sang did not make announcements on behalf of the group since he was not a member and that he was not aware that such a group existed.
“Even if it (network) was there, Sang did not announce any event, and even if he announced it, he did not know the intention and purpose of that network,” he argued.
The court further heard that Sang’s link to the network was based on his close association with Deputy President William Ruto and popular politician in the area Jackson Kibor.
The prosecution on Tuesday alleged that Ruto was the leader of the network and that Kibor was one of the members.
According to Kigen, Sang could not have been a member of the group since he blasted Kibor during his radio show contrary to expectations that they ascribed to the same principles prescribed by the network.
“Sang met Kibor on his programme at Kass FM and told him off – if he was in fact a member of the network he was a very disloyal member – he told Kibor off yet he was also perceived to be a member of the group.”
“We are saying there was no network and if there was, Mr Sang was clearly espousing positions that were advanced to the objectives of that network. Sang was a very disloyal member if that network existed. He would have been charged with treason!”
Kigen further told the court that the violence in Rift Valley did not emanate from Sang’s alleged announcement that Kikuyus were planning to rig elections.
He said it was an allegation already in the public domain and even quoted former Prime Minister Raila Odinga who he said had previously made similar claims.
Kigen alleged that the announcement was old news and therefore, if Sang said it on radio, it would not have led to violence.
Presiding Judge Chile Eboe-Osuji however tasked him to substantiate why any good journalist would want to use an old story unless one had intentions of driving a certain motive.
“If it was an old story, broadcasting it again raises the question why it is being broadcast again… is it for purposes for reporting news that is no longer news or is it for purposes of inflaming news?” Osuji asked.
According to the defence counsel, that allegation “was only one incident where the prosecution tried to link Sang to the alleged crimes but the attempt was not successful.”
It was his submission that the prosecutor’s allegations against his client were false and lacked evidence to prove the alleged criminal responsibility of Sang in the violence that left over 1,000 people dead and over 600,000 others displaced.
Sang faces three charges of murder, forcible transfer of populations and persecution.
The prosecution on Tuesday while convincing the judges not to withdraw charges against Ruto and Sang at the prosecutor’s level said it had submitted sufficient evidence that require the defence to call evidence.
Senior Trial Attorney Anton Steynberg’s submitted that Ruto and Sang have a case to answer for the attacks in Rift Valley.
The defence is required before Friday to tell the judges if it intends to call its evidence in case its motion seeking to terminate the case is rejected.