By EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted Wednesday, August 31 2011 at 22:30
Posted Wednesday, August 31 2011 at 22:30
Three of the Ocampo Six suspects will be in the dock at The Hague on Thursday afternoon for the confirmation hearings on their role in the 2008 post-election violence.
Eldoret North MP William Ruto, Tinderet MP Henry Kosgey and Kass FM presenter Joshua Sang will be up against International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo, who recently unsettled their defence by releasing “new evidence at short notice.” (Read: Kenya bid at Hague fails)
The defence has also opposed the conditions imposed by Pre-Trial Chamber presiding judge Ekaterina Trendafilova.
The judge limited witnesses to two and allowed the prosecutor to release new evidence close to the hearings which, they claimed, gave them little time to mount a credible defence.
They also took issue with the decision to allow the prosecutor not to name his witnesses.
The defence teams have an hour each, starting from 3.30pm, to tell the Pre-Trial Chamber why their clients should not be tried at The Hague. Mr Moreno-Ocampo will have half an hour to respond.
The lawyers representing Mr Ruto and Mr Sang plan to challenge both the jurisdiction and admissibility of the charges, while Mr Kosgey is questioning the court’s jurisdiction.
The government lost an appeal on the admissibility of the charges after a five-judge bench threw out its case.
The suspects face a gruelling court schedule with short breaks, a decision that has also upset their lawyers.
“The judge has imposed a sitting schedule which includes sitting until 8pm on nine occasions, sitting from 9.30am to 8pm on two occasions and sitting full days on two Saturdays. This decision was rendered without offering an opportunity to the defence to be heard,” one of the lawyers said.
The prosecutor has also raised several objections which, if upheld, might render the defence toothless.
First, Mr Moreno-Ocampo wants the presiding judge not to allow the defence to offer alibi — the defence by an accused person of having been elsewhere at the time an alleged offence was committed.
Block evidence
“Alibi or other types of affirmative defences are not appropriate at confirmation; they are issues to be resolved on a full record at the trial,” the prosecutor submitted.
He has also asked the Pre-Trial Chamber to block part of defence evidence, saying it was only suitable for the trial stage.
He accused the defence of “misunderstanding” the confirmation hearings and suggested that they should reserve their “strongest forms of evidence” for the trial.
The other suspects are Head of Public Service Francis Muthaura, Deputy Prime Minister Uhuru Kenyatta and Postmaster-General Hussein Ali, who are expected at The Hague on September 21.The ICC accuses the Ocampo Six of bearing the greatest responsibility for the violence that killed 1,133 people and displaced 650,000 others following the disputed presidential election results in 2007.
Mr Steven Kay, one of Mr Kenyatta’s lawyers, has questioned the decision to limit witnesses to two given the issues raised.
He argues that this will deny the defence the opportunity to interrogate the prosecutor’s evidence exhaustively.
Substantial grounds
“It will be a paper exercise for his case,” he argues. “How is a paper case a proper means to come to a decision that there are “substantial grounds to believe a suspect has committed an offence? Surely if the defence wants to call more evidence to combat and challenge hearsay and supposition, why can’t they?”
The prosecutor alleges that Mr Ruto and Mr Kosgey were in charge of a network that planned and financed the eviction of the Kikuyu, Kamba and Kisii from Rift Valley during the violence.
Mr Sang is accused of using his radio broadcasts to rally people to evict the three groups.
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