Ocampo seeks harsher charges on Kibaki men

By Alex Ndegwa and Cyrus Ombati

International Criminal Court Chief Prosecutor Luis Moreno-Ocampo wants far more serious charges preferred against three of President Kibaki’s associates whose written summonses arrived this week.

Ocampo also contends his case could be undermined by the judge’s re-classification of the crime of forced circumcision, which he puts under "sexual offences", to "other inhuman acts" by the chamber. If he is granted leave to appeal, he will be arguing the judges did so "without explanation of legal support".

The prosecutor argues the three — Uhuru Kenyatta, Francis Muthaura and Hussein Ali — were among Government officials who presided over systematic executions targeting perceived Orange Democratic Movement supporters.

The objective, he argues, was to keep President Kibaki and his Party of National Unity in power. He describes the action of the Deputy Prime Minister, Head of the Civil Service, and then Police Commissioner as an answer to ODM’s own organised attacks against PNU supporters in its strongholds.

He also explained that though Mr Uhuru was not in Government at the time he had been either in or worked closely with it in the past.

The judges had ruled Mr Muthaura, who is the chairman of the National Security Advisory Council, Ali, who was the police chief during, and Uhuru, being State agents could only be charged if they had acted pursuant to a "State policy". Ocampo in his application for summons against them did not submit a plea for a "State policy" in attacks against ODM supporters. He said evidence did not support such a conclusion. Consequently, the judges also rejected the contribution of the police to the crimes in Kisumu and Kibera.

News of Ocampo’s appeal came as Kenya Police served summonses on some of the six individuals. Kass FM Radio presenter Joshua arap Sang was the first to be served with his summons by the deputy director of police reforms, Kingori Mwangi.

The Standard has also confirmed Kingori later served Muthaura, Uhuru and Ali. They each had to sign a document showing they had received the summonses. Sang’s lawyers Kimutai Bosek and Katwa Kigen witnessed the service and told him to sign the delivery note.

Summons

Kingori and Sang signed the paper showing the service was conducted at the Kass FM studios along Dennis Pritt Road. A letter by Commissioner of Police, Mathew Iteere, which asked Sang to acknowledge receipt, introduced the summons: "I have received summons from the Hon Attorney General Amos Wako. I ask you to acknowledge receipt of the same."

"He told me he had my summons from The Hague and we agreed they be delivered here today (yesterday) morning. He sent Kingori and we acknowledged receipt," added Sang.

For Moreno-Ocampo the contention is the chamber’s conclusion that he had not pleaded that the conduct of the police was part of a "State Policy", and "accordingly refused to consider the police conduct and the criminal behaviour attributed by the prosecution to the suspects stemming from it." "It did so as a result of its implicit legal conclusions that persons holding State offices may not form part of an organisation and misuse a portion of the State apparatus to implement a non-State organisational policy within the meaning of Article 7(2)(a)," argues Ocampo.

Ocampo is concerned the judges have restricted the alleged commission of crimes against humanity to events in Naivasha and Nakuru and further only to those acts that were linked to Mungiki.

The prosecutor contends although preliminary evidence suggested there was no "State policy" to commit the crimes if they were unpunished it could promote impunity.

"The standard adopted could, if not corrected, provide impunity for criminal activity directly perpetrated by the police or encouraged by its deliberate failure to act," he argues.

In pursuit of the elevation of charges into a higher threshold and in seeking to reinstate the level of seriousness of the crimes he proposed against the three, which were rejected by the Pre-Trial Chamber II, Ocampo has written to the judges.

He is seeking permission to appeal against the judges’ specific decisions and conclusions.

He argues Pre-Trial Chamber II erred in rejecting his argument the police killings in January 2008 were part of a "State policy" of shoot-to-kill by police, on the basis his application did not specifically ask for this consideration.

Prosecution’s charges

He argues the consequence of the decision could influence future cases because it threatens to protect an entire category of persons from criminal charges such as State officers who contribute State machinery to attack civilians in furtherance of a non-State organisational policy. He contends the Pre-Trial Chamber had overstepped its powers because "it cannot narrow the prosecution’s charges by excluding facts and circumstances unless the narrowing is required by law."

If he has his way, the three who are clustered under the same grave charges that include killings and uprooting of populations, will be staring at more counts on their list, which possibly could attract harsher sentences if supported by evidence.

But the chamber will first have to confirm the charges against them beginning next month. That is why Ocampo wants his appeal dispensed with before this crucial stage in The Hague hearings, which takes up to seven months. His other reasons for seeking the green light to appeal lies in disagreement with the judges on the level of ‘organisation’ required to qualify a crime against humanity.

In particular he wants the judges to re-examine his argument that the State actors or people in or close to the Government, including the three, acted within a network of crime, which in this case is the Mungiki sect. When State actors act within a network like this, he says, it should be held that they were acting on a predetermined "State policy".