Monday, December 20, 2010

Ruto in race to block Ocampo

By WAHOME THUKU
Suspended Higher Education minister William Ruto has launched a fresh bid to block ICC prosecutor Luis Moreno-Ocampo from securing summons against him as a suspect in the 2007-08 post election violence.
Documents obtained by The Standard show Ruto wants to meet the three judges of the International Criminal Court (ICC) Pre-trial Chamber II to give his side of the story, and convince them to restrain Moreno-Ocampo.
Suspended Higher Education Minister William Ruto (left) and Mutito MP Kiema Kilonzo shortly after Moreno-Ocampo released the list of six post-election chaos suspects last Wednesday. [PHOTO: TABITHA OTWORI/STANDARD]
The Eldoret North MP, along with Deputy Prime Minister Uhuru Kenyatta, Head of the Civil Service and Secretary to the Cabinet Francis Muthaura, Industrialisation minister Henry Kosgey, Post-Master General Hussein Ali and radio journalist Joshua arap Sang were named by Moreno Ocampo as alleged masterminds of the violence that killed 1,200 people.

Thousands more were displaced in the chaos that followed a disputed presidential election.
Ruto’s lawyers are optimistic that the application they made to the Pre-Trial Chamber II on December 8 could be heard before Moreno-Ocampo’s.
But the two could even be heard together said one of Ruto’s lawyers, Mr Katwa Kigen. That could greatly alter the prosecutor’s timetable and the proposed trial.
In the 300-page application, the lawyers Katwa Kigen and Prof Kindiki Kithure are seeking permission to address three ICC judges Ekaterina Trendafilova, Hans-Peter Kaul and Kuno Tarfusser orally or in writing.
They want three orders: that no summons or warrants shall be issued before Ruto is heard; that his application be heard before Ocampo’s; and that the prosecutor be restrained from seeking the summons before giving notice of information that the MP is a suspect as required under the Rome Statute.
Ruto is banking on Rule 103 of the ICC Rules of Procedure and Evidence, which gives the court the leeway at any stage of the proceedings to allow or even invite a State, organisation or person to submit in writing or orally any observations on any issue that the court deems fit.
"If granted audience we will present our prayers to restrain Ocampo from seeking the summons until he has complied with the ICC procedural requirements," Kigen said.
He says even in the case against Sudan President Omar Hassan Al Bashir, some Sudanese were granted a hearing by the ICC to challenge the prosecutor’s application for warrants of arrest.
Article 55(2)(a) requires that where there are grounds to believe one has committed a crime and is about to be questioned by the prosecutor, he shall have a right to be informed of those grounds before being questioned.
Counter attackFurther, in Article 54, the prosecutor is under obligation to investigate both the incriminating and exonerating evidence equally in order to establish the truth.
"The prosecutor cannot pretend to have investigated exonerating evidence, because the best source of such evidence is the suspect himself," argues Kigen.
With names of the six suspects now out in the open, Ruto’s strategy is to engage Ocampo on technicalities and on compliance with the Rome Statute. He wants the ICC to treat him at par with the prosecutor right from the onset.
He says Ocampo disregarded his exonerating evidence that some of the witnesses were allegedly coached, induced and compromised yet he was obliged by the law to investigate it. Ocampo has, however, maintained that he will be relying on evidence from independent witnesses.
Sources revealed that some of the other suspects were also planning a similar counter attack. They too, claim Ocampo never informed them formerly why they were suspects.
The Government and individuals or organisations could also use this opening to make an application to raise any issues with the ICC before summonses are issued.
The court works on the premise that such applicants could provide an alternative view. In such a situation, both the defence and the prosecution must be given an opportunity to respond to the observations.
President Kibaki and Prime Minister Raila Odinga have reportedly agreed to pursue the failed option of setting up a local tribunal to try the suspects.
Kibaki and Raila were stunned after Moreno-Ocampo knocked on their doors by naming two of their trusted confidants on his list: Head of the Civil Service Francis Muthaura and Industrialisation minister Henry Kosgey respectively.
The two principals are now hoping that once such a tribunal is in place, they can prevail upon the United Nations Security Council to refer the suspects to the local process instead of The Hague.
Poll dismissedA new opinion poll by Infotrak Research and Consulting released three days after the naming of the "Ocampo Six" showed that 67 per cent of Kenyans would not vote for those on the list if a General Election were to be held today.
However, only a narrow majority, 51 per cent, believes the list is comprehensive. Party of National Unity (PNU) Chief Strategist Peter Kagwanja dismissed the poll saying its timing was suspect.
Those backing Ocampo said a local tribunal was unlikely to be independent or fair. They felt the naming of the "Ocampo Six" could act as a deterrent to leaders keen on incitement in future, but felt President Kibaki and Prime Minister Raila Odinga should also be on the list.
Lowest satisfaction with the list was noted in the Rift Valley where Ruto and Kosgey hail from, at 40 per cent, and North Eastern at 29 per cent.
Last Thursday in Parliament, Justice Constitutional Affairs minister Mutula Kilonzo said a motion by Chepalungu MP Isaac Rutto to have Kenya denounce the Rome Statute and pull out of the ICC was misplaced and should be rejected.
Prime Minister Raila Odinga reminded MPs they were responsible for the current situation because they rejected attempts to institute a local tribunal to try the suspects.

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