By OLIVER MATHENGE, omathenge@ke.nationmedia.com
Posted Wednesday, March 16 2011 at 22:00
Posted Wednesday, March 16 2011 at 22:00
The Hague prosecutor is appealing a court ruling excluding police shootings from the case against the Ocampo Six.
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Mr Luis Moreno-Ocampo has asked the Pre-Trial Chamber to allow him to challenge the decision to strike out charges relating to police shootings in Kisumu, Kibera, Nakuru and Naivasha.
Mr Moreno-Ocampo holds former police commissioner Hussein Ali and head of Public Service Francis Muthaura responsible for police killings.
Excluding the charges weakens his case against them and to a lesser extent, that against Deputy Prime Minister Uhuru Kenyatta.
He argues that excluding the shootings will likely affect the outcome of the trial and wants the charges reinstated before the suspects appear in court on April 7.
He also disagrees with the judges as to whether forced circumcision constitutes “sexual violence”. Mr Moreno-Ocampo, in his case, argues that it does, while the judges said it was inhumane treatment.
“The prosecution will not be able to present its case if the Chamber adheres to an incorrect legal analysis that forecloses the possibility of holding State actors accountable for these crimes,” he argues.
The International Criminal Court hears cases involving crimes committed as part of an organisation’s or State’s policy.
The Pre-Trial judges had rejected his argument that officers who shot protesters were carrying out “State policy”. But they agreed that the killings in Naivasha and Nakuru, mainly by Mungiki, were crimes against humanity.
During his interview with journalists on Monday, the prosecutor said he was confident that he had the evidence to sustain all the charges he has brought against the suspects.
“The judges rejected evidence that police shot to kill civilians. There is a technical reason why they did not accept. This evidence touches on Muthaura, Ali and Kenyatta. We are debating in the office and we will appeal,” he said.
“We will collect more evidence which we need but we cannot go to court without evidence. This is why the judges agreed with us.”
Mr Moreno-Ocampo argues that Mr Muthaura and Maj-Gen Ali had instructed police to use excessive force and not to interfere with Mungiki atrocities.
The Pre-Trial judges had ruled that the police could only be held accountable for the crimes in Nakuru and Naivasha if they acted pursuant to a “State policy by abstention”.
Similarly, the judges rejected the contribution of the police to the crimes in Kisumu and Kibera, again on the grounds that the prosecutor failed to prove that those crimes were committed pursuant to a “State policy”.
Notifying the court of his intention to appeal, the prosecutor said he wanted the Appeals Chamber to consider two issues:
“One concerns the construction by the Pre-Trial Chamber of the organisational requirement that must be pleaded and proved to convict a person of crimes against humanity.
“The other concerns whether forcible circumcision of adult males cannot constitute an act of sexual violence and should be qualified as “other inhumane acts” instead.”
Others who have been asked to appear at The Hague as suspects are Mr William Ruto, Mr Henry Kosgey and Mr Joshua arap Sang.
Mr Moreno-Ocampo wants the two issues dealt with as a matter of urgency as they “bear on the criminal charges that the suspects will be called upon to answer”.
Failure to do this, he says, the prosecution will be “irremediably prevented from pursuing its factual and legal theory of the case”.
“The prosecution submits that in the instant case. . . there was not a State policy to commit the crimes. Therefore, the standard adopted provides impunity for all criminal activity directly perpetrated by the police or encouraged by its deliberate failure to act,” the application reads.
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