Ocampo six back to The Hague

By Vitalis Kimutai

The return journey to The Hague’s courtroom by three of six Kenyans accused of crimes against humanity has started three days before broadcasts of confirmation hearings capture national attention.

Joshua arap Sang

Kass FM Head of Operations Joshua arap Sang and his defence team, as well as the lawyers of Eldoret North MP William Ruto and Tinderet MP Henry Kosgey, are already in The Hague. The confirmation hearings for the three — where it will be decided if they should be tried and handed over to a different panel of judges — will run between September 1 to 12.

As the clock ticked closer to this most critical moment of their lives, Ruto urged Kenyans to pray for him ahead of his date with "Prosecutor Moreno-Ocampo and his false witnesses."

Sang and his family held prayers earlier in the day at the Milimani African Inland Church, Nairobi.

Whereas Sang left on Sunday, Ruto leaves on Monday evening and Kosgey on Tuesday night. After the court rules on the individual cases prepared by Prosecutor Luis Moreno-Ocampo, it will be the turn of three other prominent suspects whose charges include aiding Mungiki revenge killings in Rift Valley during post-election violence, and holding a meeting at State House to plot the revenge attacks.

Kenyans will on Thursday again turn their attention on proceedings at the International Criminal Court.

The interest in the broadcasts will be hinged on the serious claims Ocampo has made against the suspects who he accuses of coordinating, assisting and abetting killer militias responsible for the wave of killings, dispossessions and displacements witnessed in the first three months of 2008.

Sang left for The Netherlands, which hosts the international court, from Jomo Kenyatta

MP Henry Kosgey

International Airport. He boarded a Dar-es-Salaam-bound Kenya Airways plane from where he was to switch to a KLM flight for the trip to Amsterdam. His flight left JKIA at 10:55pm.

Lawyer Katwa Kigen, representing both Ruto, as well Kosgey’s team that includes lawyers Julius Kemboy, George Oraro and Allan Kosgey, left for The Hague on Sunday.

Ruto, who was accompanied by Energy Minister Kiraitu Murungi and Igembe North MP Ntoitha M’Mithiaru during a harambee in Meru Town on Sunday evening, declared he was confident that he would overcome his tribulations at the ICC.

"I had been invited by my kinsmen who wanted me to pray with them ahead of my trip to The Hague. But because I chose to come here to worship with you on the eve of my journey to The Netherlands speaks volumes of how I value Meru," said Ruto.

Ruto said he was ready and raring to go to The Hague after the weekend prayers, which he said, were fulfilling and encouraging.

Face Ocampo

Speaking to journalists at JKIA, Sang expressed confidence that the cases facing them would not be confirmed because according to him the charges were trumped up.

"It is our turn to face ICC Prosecutor Moreno Ocampo and give our side of the story before the judges. I am confident that we will emerge victorious," Sang said.

He added: "After all the lies, it is now time for the truth to come out. It is sad that we will not be able to face the witnesses after Ocampo decided to hide them."

"I am going for a 12-day holiday at The Hague and hope to be back to the country and prepare for my university graduation which comes towards the end of the year," Sang joked.

His wife, children, close relatives and friends escorted him to the airport.

Kigen had earlier told The Standard on the telephone his clients — Ruto and Sang — would be presenting two witnesses each before the court.

"We are prepared to present our evidence before the court in the hearings which start on Thursday," Kigen said.

The opening of the hearing of confirmation charges is scheduled to start on Thursday, September 1 before the Pre-Trial Chamber II of the ICC, which has presiding judges Ekatarina Trandafilova, Hans-Peter Kaul and Justice Cuno Tarfusser.

A confirmation of charges hearing is not a trial but a public hearing in which the Pre-Trial Chamber will decide whether or not there is enough evidence in each of the cases to proceed to a trial before another Trial Chamber.

The Pre-Trial Chamber does not also make a decision about the suspects’ innocent or guilt. At the Chamber, the prosecution is expected to push its case through documents, or by calling witnesses or experts.

The defence team may also choose to present witnesses’ testimony while legal representatives of victims authorised by judges to participate will also make their submissions.

A total of 327 victims have been cleared to participate in the cases facing Ruto, Kosgey and Sang while 233 have been granted to participate in the cases facing Mr Francis Muthaura, Mr Uhuru Kenyatta and Maj-Gen (Rtd) Hussein Ali.

However, the victims would not be attending the sessions but their lawyers will be present.

The Pre-Trial Chamber II will after 60 days either confirm one or more of the charges for trial, or dismiss all of them, for either one, two or all the suspects.

In such a situation, the prosecution can at a later date provide more evidence on the declined charges and seek confirmation again.

The Pre-Trial Chamber may also adjourn the hearing before giving their verdict and ask the prosecution to provide more evidence or to amend the charges if the evidence establishes a different crime other than the one the suspects have been charged with.

If charges are confirmed, the persons charged would be presumed to be innocent until their guilt is proven beyond reasonable doubt before the Trial Chamber.

Defence team

Ocampo has informed the court that he will require 15 hours to present his charges against Ruto, Sang and Kosgey, as well as to cross-examine five defence witnesses.

"Assuming that the entire hearing takes 40 hours, this will allow the defence to have substantially more time than the prosecution. The prosecution would, of course, endeavour to use less than the 15 hours, if it turns out that crossexamination of the defence witnesses will not be necessary," a statement from the ICC indicated.

The prosecutor, however, said it was difficult to determine the exact time he will use on the witnesses from the defence side since he is not aware of what they will say. "Without any information as to what four of the five defence witnesses will testify to or how long any of their anticipated direct testimony will take, it is impossible to assume that it will need less time than that," argued Ocampo.

Ocampo has also requested the court to ensure presentation of evidence by witnesses to the defence be done in closed sessions to protect their identity.