Ocampo top lawyer joins Muthaura’s defence team

Essa Faal, who has been one of ICC chief prosecutor Luis Moreno Ocampo’s top prosecutors, has joined the defence team of Public Service head Francis Muthaura.

By SAMWEL KUMBA, skumba@ke.nationmedia.com
Posted  Saturday, June 18 2011 at 20:14

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The stage is set for a bruising legal battle at The Hague after a lawyer who previously worked for ICC chief prosecutor Luis Moreno Ocampo quit and joined the defence.

Essa Faal, who has been one of Mr Ocampo’s top prosecutors, has joined the defence team of Public Service head Francis Muthaura.

This means that Mr Ocampo and Mr Faal will be on opposite sides in court when Mr Muthaura’s crimes against humanity case comes up for a confirmation hearing in September.

Mr Faal appeared alongside Mr Ocampo as the key prosecution lawyer in the Darfur case where Sudan President Omar al Bashir was charged with crimes against humanity committed in the troubled region.

Confirming Mr Faal’s move, Mr Muthaura’s lead defence counsel, Karim Khan, said the lawyer brings invaluable experience to the team and will bolster their case as they prepare to fight Mr Ocampo’s charges.

“I am delighted to confirm that Essa Faal, an eminent lawyer from The Gambia, has accepted the invitation to join the Muthaura defence team,” Mr Khan told the Sunday Nation.

He described Mr Faal as a brilliant lawyer with wide experience in international criminal law.

Mr Khan said Mr Faal had resigned from his ICC post when he invited him to join the Kenya case after consultations with his client.
The Muthaura defence team now has three lawyers: Mr Khan, Mr Ken Ogeto and Mr Faal.

“We are looking forward to the challenge of exposing the fundamental flaws that we believe are in every aspect of the prosecution case against Mr Muthaura, a respected civil servant now being accused of rape, among other charges,” said Mr Khan.

Mr Muthaura, Kenya’s foremost civil servant, is charged together with five other Kenyans with crimes against humanity arising from the post-election violence of 2007-2008.

The others are Deputy Prime Minister and Minister for Finance Uhuru Kenyatta, suspended Higher Education Minister William Ruto, former Industrialisation Minister Henry Kosgey, former Police Commissioner, who is currently the postmaster-general, Hussein Ali, and radio journalist Joshua arap Sang.

The six are alleged to bear the greatest responsibility for the violence in which more than 1,300 people died and nearly 500,000 were displaced.

The six men made their initial appearance before the three-judge ICC pre-trial panel in April and are set for confirmation hearings in September to determine whether they should stand trial for the crimes they are accused of committing.

The latest move by Mr Muthaura’s legal team means Mr Ocampo will have to work extra hard to prove his case, especially now that a former insider is on the opposite side.

A lawyer familiar with ICC proceedings said “having worked with the chief prosecutor until a few months ago, it means that Mr Faal understands Mr Ocampo’s thinking, which will definitely boost the defence team as it prepares to shoot down the charges against Mr Muthaura”.

The lawyer described Mr Faal as “a respected professional in the tribunal and a very big catch” for the defence team and added that the prosecutor may have to rethink his strategy on the Kenya case.

“He (Mr Faal) will surely give the prosecution a very rough time . . . he understands the entire prosecution strategy and, in court, strategy is very important,” the lawyer added.

The lawyer said that although Mr Ocampo may downplay the issue “deep down, it is a big problem”.

It was not possible to get an immediate reaction from Mr Ocampo, but Mr Khan said Mr Faal was not in any way involved in the Kenya case, thus there should be no conflict of interest.

Mr Khan said he had reassured Mr Muthaura over similar concerns.

“We are guided by the ICC code of conduct which requires members of the Bar to look at the case at hand and not to accept instructions if there is any conflict of interest,” said Mr Khan, adding that this is not the first time a prosecutor had crossed the floor to join the defence.

Indeed Mr Khan himself has done so before. “I was the first member of the English Bar recruited by the International Criminal Tribunal for the former Yugoslavia, and I moved from there and defended at least six cases,” he explained.

ICC official Fadi Abdallah said that if there was a conflict of interest in Mr Faal’s move, ICC judges would raise an objection.
He said that for such an objection to be raised, there can be different reasons, depending on the case.

Mr Khan, however, said that as a matter of professional conduct a lawyer cannot deliberately mislead the court and never would one accept instructions where there is a conflict of interest.

He expects the prosecutor’s office and the Bench to treat Mr Faal with the same confidence and honour they accorded him while he was prosecuting.

“He upholds the same integrity that characterised him as a prosecutor, and we are sure he will receive that kind of confidence from the Bench. Such a treatment is critical for the advocate,” said Mr Khan.

Mr Faal was a senior trial lawyer attached to the office of the ICC prosecutor. He is known to be a staunch defender of the ICC system.

During the 47th Ordinary session of the African Commission on Human and People’s Rights that was held in The Gambia, he said the ICC serves to strengthen Africa’s determination and commitment to the creation of a permanent, impartial, effective and independent judicial mechanism to try and punish the perpetrators of crimes whenever they occur.

He was the senior trial lawyer at the trial of Darfur rebel leader Bahar Idriss Abu Garda. Mr Khan led the defence team, and the charges were dropped against Mr Abu Garda in February 2010 for lack of evidence.

In addition to being a trial lawyer at the ICC, Mr Faal is a guest lecturer at Pennsylvania State University School of Law.

He received his bachelor’s degree in law from the University of Sierra Leone and his master’s from the University of the West Indies.