By KIPCHUMBA SOME ksome@ke.nationmedia.co.ke
Posted Saturday, December 24 2011 at 22:30
Posted Saturday, December 24 2011 at 22:30
It is the season of good cheer for most Kenyans but, for the Ocampo Six, Christmas celebrations may be overshadowed by the anticipated ruling over crimes against humanity charges.
In about three weeks, International Criminal Court (ICC) judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser will decide whether Deputy Prime Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura, Eldoret North MP William Ruto, former Police Commissioner Hussein Ali, Tinderet MP Henry Kosgey and radio journalist Joshua Sang have cases to answer over the 2007-2008 violence.
The court is currently on recess until January 9, and the ruling is expected any time from that date. (READ: Ocampo Six to know fate on same date)
Besides altering the course of their personal lives, the judges’ decision could also influence the names to appear on next year’s ballot papers depending on who they commit to trial.
The six suspects will be hoping that the judges agree with their defence teams that the prosecutor has not done enough investigations to prove the charges against them.
On the other hand, Chief Prosecutor Luis Moreno-Ocampo will be hoping for a confirmation of the charges, which would be a symbolic victory since he has not secured even a single conviction in his eight-year tenure.
Four scenarios could unfold from the ruling: the charges against all the six suspects could be confirmed, dropped or dismissed and the prosecutor asked to do more investigations. Lastly, some of the accused could be committed to trial and others released.
The prosecutor can appeal a dismissal by the judges. Legal experts say it is highly unlikely that the first two scenarios could unfold.
First, the threshold for confirming the charges is quite low. All that is required is to prove that there are grounds for the cases to proceed.
“It is highly unlikely, in my view, that the charges against all of them could be confirmed since some of the suspects should not be in the list in the first place.
“Dismissing all charges on the other hand would again be a let-down to the victims,” said Mr Onesmus Murkomen, a law lecturer at Moi University.
During the confirmation hearings in September and October, defence lawyers criticised Mr Moreno-Ocampo’s tactics and alleged that he had done little investigation into the cases. In particular, they criticised the use of anonymous witnesses.
The defence’s hopes were probably significantly raised following the recent decision by the court to dismiss charges against Rwandan Callixte Mbarushimana who had been charged with war crimes.
In their ruling, the judges criticised the prosecutor for using anonymous witnesses. During the hearings of the Kenya case in October, Mr Moreno-Ocampo relied on the testimony of anonymous witnesses.
The defence stressed this fact. In their final written submissions, lawyers for Mr Ali wrote:
“In its submission, OTP (office of the prosecutor) argues unconvincingly that the confirmation process should be a rubber stamp for its allegations.
“OTP urges that its evidence should be accepted without scrutiny, that defence evidence should not be fully considered, and that anonymous witness statements and summaries are sufficient to confirm charges even where they are clearly contradictory, inconsistent and factually incorrect. OTP is manifestly wrong.”
There is no guessing how the judges will decide. However, German-born Judge Kaul has stated in the past that the Kenyan case should not have been brought to the court. It is highly unlikely that he will change his mind, experts contend.
Thus Mr Moreno-Ocampo’s case will fall or stand depending on how well he has convinced the other two judges.
But outside the law and hard evidence, a local lawyer who has been keenly following the ICC case but who does not wish to be named since he is doing some work for the government, said that apart from consideration for the victims, the judges’ decision might also be influenced by local politics.
He said the judges might keep in mind how their ruling might influence the political situation in Kenya, given the ruling comes in a possible election year. “I think they might not want to give a ruling that might raise ethnic tensions,” he said.
In addition, he cited the silent hand of the international community in the case. “Given Kenya’s strategic importance, I think the international community is keen to see impunity punished. They might not do so overtly but the hand of the international community might be a factor,” he said.
Besides this, an insider at the ICC said that some political considerations could also come into play. Top on the list is the issue of funding which has been shrinking amid economic turmoil in the major donor nations.
There’s also the Eurozone crisis which has affected some of the countries that have been funding the court.Wealthy governments underwrite the ICC’s bills, amounting to nearly $100 million (Sh840 million) annually. However, some of them, for example Japan, have asked to cut funding citing failure to secure a conviction since the court was founded.
With this, the insider intimated, the court will be forced to deal with fewer cases. In the Kenyan case, six suspects is just too high a number for the court’s finances to sustain, meaning not all the suspects might be committed to full trial.
“At least two of the suspects may be let free. Some of them should never have been taken to the ICC in the first place,” the lawyer said.
Emphasising that Kenyans should be prepared for any verdict, the lawyer pointed out that the possibility of all the six being let free is remote. “ICC will not let down victims.”
Beyond these considerations, the ruling is greatly anticipated because of its bearing on the Kibaki succession. Two of the suspects — Mr Kenyatta and Mr Ruto — are declared presidential candidates.
It is unclear how their campaigns might suffer should the cases against them be confirmed. Although Mr Moreno-Ocampo has made it clear that it will not prevent them from running for office, experts contend that logistically, it might be impossible for them to do so.
For one, they will be required to be physically present in the court for the duration of their trials. The ICC does not hold trials in absentia and, going by examples of cases handled by the court, trials could last for months or even years.
Lawyer George Kegoro says the suspects have nothing to fear unless they change their behaviour.
“Unless they give the judges a very credible reason to hold them at the ICC, I think they will still be free men even if the cases against them are confirmed,” he said.
Like most courts in the world, ICC suspects are usually released on bond unless there is a strong reason to have them in remand.
For example, in relation to the Kenyan case, the issue of witnesses being threatened might provoke the judges to issue orders for the suspects to be remanded for the duration of their trials.
The judges’ ruling might influence the Kibaki succession race in many ways. But there is no telling how the politics might pan out in the absence of Mr Kenyatta and Mr Ruto.
For example, take a scenario where one of the two is released and the other committed to trial. Some observers say this would strain their relationship and make it difficult to form an alliance for the next polls.
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