Ocampo Six differ over Kenya hearings

BY ROB JILLO

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null 1/1 Kenyans facing ICC charges NAIROBI, Kenya, Jun 13 - Six Kenyans who are facing crimes against humanity accusations before the International Criminal Court were divided on Monday over a proposal by the court to hold confirmation of charges hearings in Kenya. While Messrs Henry Kosgey and Francis Muthaura welcomed sittings of the Pre Trial Chamber in Kenya, William Ruto, Joshua arap Sang and Major General (rtd) Mohammed Hussein Ali objected and said the hearings should be held at The Hague as scheduled. Judges at the International Criminal Court had last month asked the parties, including the prosecutor and victims to state their position on a proposal to hold the confirmation of charges hearings in Kenya. Prosecutor Luis Moreno Ocampo and the Office of the Public Counsel for Victims also pushed for the court to sit in The Hague. In an observation filed by his lawyers at The Hague based Court, Mr Kosgey said conducting the hearings in Kenya would bring justice closer to the victims while at the same time removing the huge cost burden for his travel and accommodation were the hearings to go ahead in the Netherlands. "The proximity of witnesses, evidence, defence counsel and family as well as attendant low costs of procuring attendance will tremendously contribute to the fairness and expeditiousness of the proceedings," his lawyers said. Mr Muthaura's defence team said: "Conducting the confirmation of charges hearing in Kenya would be convenient for Ambassador Muthaura, members of his family and friends who, undoubtedly would like to be around him during such a period in order to lend him support." "Holding the proceedings in Kenya would also be convenient for the witnesses, victims and members of the Kenya society in general. They will not have to endure the trouble of travelling to a foreign country to witness or participate in the proceedings." On his part, Mr Ocampo said that Kenya was not safe to hold the hearings, arguing that his witnesses would be in danger as Kenya cannot protect them effectively. "It is impossible to assume that the government of Kenya will provide the essential cooperation and substantial protection to enable an effective continuation of the confirmation hearing in situ. The Prosecution considers that the security condition makes it impossible to conduct hearings in Kenya." Sarah Pellet, the Counsel for the Victims said holding the confirmation of charges hearing in Kenya would increase the danger of an outbreak of violence. "Victim applicants expressed concern that the hearings might be exploited for domestic political consumption, a potential that would only be exacerbated by holding proceedings in Kenya," she argued. Mr Kosgey's lawyer George Oraro filed his client's position with the Court's Registry, in which he said; "There are manifest advantages both to the Court as a whole and to the Defence if the proceedings are conducted in the Territory of the Republic of Kenya." Mr Kosgey is also happy that he will have to make adequate arrangements necessary to present his defence in case the hearing is conducted in Kenya or any East Africa States. "A particular hardship for him is the daunting prospect of the high cost of travel of Defence Counsel and Support Staff, various consultants, family members and witnesses to The Hague as well as hotel accommodation and maintenance for the entire period of the Confirmation of Charges hearing,". While Mr Kosgey sees the move as advantageous and expeditious, Messrs Ali, Ruto and Sang saw it as more of a delay in terms of logistics and other infrastructural considerations. In his observation Mr Ali's lawyers state: "Given the desirability to bring this matter to a prompt conclusion, it is questionable from a practical perspective whether the necessary infrastructural and logistical measures can be put in place quickly and whether the Government of Kenya can facilitate the maintenance of the court schedule to safeguard the speedy and fair trial rights of General Ali, which will be compromised by possible delays and other factors." Mr Ali also questions the Kenya Government's (GoK) commitment to assist the court considering that it has challenged the admissibility of the cases before the court.  An Appeal is pending after the Pre-Trial Chamber II judges threw out the Government's challenge. "In the circumstances, the defence is unaware of the GoK's position and its ability to assist. Without a proper understanding of the government's likely position on this matter, and in order not to expose these proceedings to delay the Defence of General Ali prefers that the confirmation hearings be conducted at The Hague," the lawyers argued. According to the retired general, the issue at hand was grave and involved other parties and he therefore called for an urgent status conference before the final decision of the venue of the confirmation hearing is made. "General Ali respectfully requests a status conference to discuss inter alia the impact the relocation of the confirmation hearings will have on his right to a speedy and fair trial as well as the practicalities involved in coordinating such hearings in Kenya." Messrs Ruto and Sang also argue that moving the venue will create presumption that the Kenyan Government had lost the appeal against the admissibility challenge. "A decision relocating the hearing to Kenya presupposes that the challenges and requests filed by the Kenyan government will be unsuccessful. Moreover, if the Government is required to mobilise its resources in order to give effect to the specific requirements of the ICC in convening the confirmation hearing in Kenya, this will divert resources and funds from the ability of the Kenyan authorities to focus on its own investigations and national proceedings, which would thus defeat the purpose of complementarity." On the issue of logistics, Mr Ruto's lawyers say Kenyan facilities are incomparable to what is offered at ICC including e-court system. "The defence has discovered that several ringtail functionalities can only be utilised at the Court's premises in The Hague. For example, evidence can only be uploaded into ringtail on an ICC computer, and documents can only be converted to pdf documents and saved on a desktop on an ICC computer. The latter aspect is of particular importance in light of the fact that internet connection in Kenya tends to be sporadic, which renders it impossible to analyse lengthy documents via citrix online." In contrast, Mr Kosgey says Kenya has enough facilities that meet The Hague threshold, saying that the country hosts international organisations. "Outside the UN offices in Nairobi Kenya, there are also numerous conference facilities that can be used as courtrooms with adequate public gallery spaces such as the Government owned Kenyatta International Conference Centre, County Hall, or Bomas of Kenya," the lawyers for Mr Kosgey said. He envisages that should the proceedings be conducted in Kenya, the visibility of such proceedings to the public as well as those who claim to be victims of the 2008 post election violence will play a significant role in engendering a sense of accountability should similar circumstances occur. "Let Kenyans own the whole process for, after all, the courts efforts are in pursuit of justice for them. When the process is "touched" and "felt", it would undoubtedly satisfy expectations of transparency of the process thereby lending credence to the Court's role." Mr Ruto and Mr Sang were of a contrary view saying the hearing could be a very emotive event and can be distorted or taken out of context. The argued that the Prosecution has used the court processes to repeat scurrilous and unsubstantiated allegations concerning their integrity. "Given the profile of these cases in Kenya and the fact that the local population do not necessarily understand the limited role and purpose of the confirmation hearing, and generally, the dynamics of the ICC court, if the Prosecution were to use the confirmation hearing as a vehicle for making similar allegations, some segments of the local press, activists, and community could be highly influenced by such statements." Mr Muthaura acknowledges that holding hearings in Kenya would have potential challenges and has therefore suggested Arusha, Tanzania, as an alternative venue. "Arusha offers unique opportunity to bring the proceedings to the sub region and closer to the SITU of the alleged clients thus contributing to the principles and objectives of the Rome Statute," his lawyer Karim Khan said. Follow us at TWITTER@CapitalFM_Kenya and the author at https://twitter.com/robjillo

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