Hague: Ocampo prepares last batch of evidence

Updated 8 hr(s) 33 min(s) ago

By EVELYN KWAMBOKA

Exactly one month from Monday, the International Criminal Court reconvenes for the first confirmation of charges hearings against six Kenyans its Prosecutor wants charged with crimes against humanity.

But with the clock ticking towards September 1, ICC Prosecutor Luis Moreno-Ocampo is on Monday expected to present his last batch of evidence, part of which has been obscured or redacted because of its sensitivity.

According to the ICC calendar, Ocampo will file the Document Containing Charges (DCC) in the first case involving Eldoret North MP William Ruto, Tinderet MP Henry Kosgey and Kass FM head of operations Mr Joshua Arap Sang by this evening. In the second case involving Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura and Postmaster General Hussein Ali, Ocampo is expected to file the DCC by August 19.

Ocampo had announced he will not present live witnesses, but will instead rely on edited evidence already in his possession.

However, two of the suspects — Ruto and Muthaura — have indicated they will be presenting witnesses to fight off the Prosecutor’s evidence.

Suspects anxiously wait for the two days because it will be the first time they will know what their charges are. Their lawyers will also seize the opportunity to strengthen their defence.

"We will be presenting about 10 or 11 witnesses during the hearing," revealed one of Ruto’s lawyers.

After Ocampo releases his redacted evidence, the suspects will have only a month to put their evidence in line with the charges they will have been given from the Prosecutor’s DCC.

In her latest ruling, Pre-Trial Chamber presiding judge Ekaterina Trendafilova ordered Ocampo to file the documents, adding that what he used in obtaining summons against the suspects in March, was not a charge document.

The court also allowed Ocampo to edit information touching on Nairobi’s Kibera and Kisumu post-election violence killings, arguing they were part of on-going investigations.

According to the court, Kisumu and Kibera fall outside the scope of the case against Ali and editing the information would have no impact on the right of the defence to prepare for the confirmation of charges hearing.

Ocampo is likely to use information on the two areas if charges against the suspects are confirmed.

The court also pointed out that if the prosecutor reveals to the defence references to Ali’s statement before the Commission of Inquiry into Post-Election Violence, it would not create any risk for victims or witnesses.

So far, lawyers representing the suspects have been busy trying to prepare evidence aimed at countering allegations by the prosecutor in the legal duel set for September.

Ocampo used a document containing allegations against the suspects under Article 58 of the Rome Statute to obtain summons. It is the same one that was used when they appeared before the court in April.

In the application, Ocampo alleged there are reasons to believe Ruto, Kosgey and Sang committed crimes against humanity of murder and forcible transfer of population in Kiambaa, Huruma, Langas and Nandi in the Rift Valley.

Perpetrated attacks

Ocampo alleged Muthaura and Ali used the police to perpetrate attacks against Orange Democratic Movement supporters in Kisumu and Kibera between December 2007 and January 2008.

He also alleged that the two, including Uhuru, used the outlawed Mungiki to perpetrate attacks on ODM supporters in Naivasha and Nakuru.

The heavily edited Article 58 application is the one that has since shaped the contours of the case against the suspects.

"The Single judge [Trendafilova] wishes to clarify that while a lesser redacted form of the Article 58 application is warranted by the procedural rights of the defence in preparation for the confirmation of charges hearing, Article 58 is not a charging document," the judge said in her ruling on Friday.

Under the ICC Statute, the prosecution bears the burden of proof, but the defence is granted the right to fight claims against their clients.

Earlier on, local and international media reported that the allegations read to the suspects in April were the charges that were to be used at the confirmation hearings.

The information filed in the Article 58 application by the Prosecutor in March, was to enable Ruto and the other suspects understand the nature of the case against them, before Ocampo files the DCC.

Judge Trendafilova ordered Ocampo to issue a new edited version of the document as confidential, adding that the current extent of redactions shall be maintained.

The judge said it also has a significant impact on the ability of the defence to prepare for the confirmation of charges hearings. She considered the fact that in a number of cases, the defence already has the edited information in the Article 58 application, hence making the protection of witnesses futile.

Sensitive information

Ocampo now proposes the continued redaction of certain information that is likely to identify victims and witnesses, as well as other sensitive information not previously disclosed to the defence.

To protect the safety and physical wellbeing of victims and his witnesses, the prosecutor is to edit an entire section touching on "Planning Meetings and Rallies" in his Article 58 application.

This, the court has partially approved, and he is to file it in the record of the case touching on Ruto and the other three not later than July 26.

Through their lawyer Kemboi Katwa, Ruto and Sang opposed the redaction saying the information concerning the dates and details of meetings and rallies, is crucial to their case. Without this information, Katwa argued, his clients cannot be said to have been informed in relation to the nature and content of the charges, and cannot exercise their right to object to the charges and challenge the prosecution evidence.

The Tinderet MP through his lawyer, Mr George Oraro supported Katwa’s argument, adding that Ocampo should be prohibited from relying upon any allegations or evidence on the edited information touching on dates, meetings and rallies in the document.

They have since prepared lists of witnesses to testify in favour of their clients when they come face to face with Ocampo in September.