Wednesday, January 4, 2012

Countdown to Ocampo Six ruling after ICC recess


By Wahome Thuku

The countdown to the fate of the Ocampo Six is officially on after the International Criminal Court (ICC) returned from its two-week recess on Monday.
Topping the court’s diary is the much-awaited ruling on whether or not a top civil servant, two presidential contenders, a leading MP, a former police commissioner and a radio journalist should be tried for crimes against humanity.
Head of the Civil Service and Secretary to the Cabinet Mr Francis Muthaura, Deputy Prime Minister and Finance Minister Uhuru Kenyatta, MPs William Ruto (Eldoret North) and Henry
Before going on recess last October, the International Criminal Court announced it would rule on Kenya’s cases on the same day to protect safety and well-being of witnesses and victims. [Photo: File/Standard]
Kosgey (Tinderet), Postmaster General and former police commissioner Major General Mohammed Hussein Ali and radio executive Joshua Sang are the suspects.
The six have been accused by ICC Prosecutor Luis Moreno-Ocampo of bearing the greatest responsibility for crimes committed during the 2008 post election violence.
The ICC could commit all or some of the six to trial, or decline to confirm the charges if it determines that there is insufficient evidence.
It could also opt to adjourn the hearing and request the Prosecutor to consider either providing further evidence or conducting further investigations, or amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.
Once the charges have been confirmed, the Presidency of the court shall constitute a Trial Chamber.
Ocampo Six
The ruling by the court will headline a year of intense political jostling as Kenya holds its first ever General Election under the current Constitution with two of the suspects, DPM Uhuru Kenyatta and Eldoret North MP William Ruto gunning for the presidency.
With no business scheduled in the court’s calendar between now and January 13, the ruling by the ICC Pre-Trial Chamber II judges on the two cases facing the Ocampo Six that is expected before January 21 will be the curtain raiser for the ICC this year.
Whatever it will be, the joint ruling on the two Kenyan cases will have great ramification on Kenya’s general elections scheduled for later this year. Ruto and Kosgey are charged with being indirect co-perpetrators of murder, forcible transfer of populations and persecution. The court ruled that there was not enough evidence that Sang was an indirect co-perpetrator in the crimes, but accused him contributing to the same set of crimes.
The three are enjoined in the first case, while Uhuru, Muthaura and former police Commissioner Ali are in the second case.
Opinion polls
Uhuru and Muthaura are accused of being co-perpetrators of murder under Articles 7(l)(a)), forcible transfer of persons, rape, persecution and other inhumane acts while Ali is accused of contributing to their commission.
The first confirmation of charges hearings that was against Ruto, Kosgey ad Sang took place from September 1 to 8, and the hearings for Uhuru, Muthaura and Ali were held from September 21 to October 5 last year.
Kenyans spent 24 days glued to their television sets for hours as the ICC Prosecution team and the defence lawyers engaged in a showdown with each side trying to convince the judges to confirm or decline to confirm the charges.
Kenyans are split along political and ethnic lines regarding the two cases, but most opinion polls conducted before the hearings showed most still favour the ICC process.
Whichever way it goes, supporters of Uhuru and Ruto are likely to view any ruling by the ICC as political.
Given the intense interest raised by the cases, the ICC announced in October that it would release the rulings on the two cases on the same day to "protect the safety and well-being of witnesses and victims."
The Pre-Trial Chamber said it took the decision because it was mindful of the many security concerns raised by the victims in both cases, which were supported by regular reports the court received on the security situation in Kenya.
Before going on recess, the Chamber’s Presiding Judge Ekaterina Trendafilova appealed to Kenyans to respect the life, security and property of victims and witnesses and to refrain from engaging in any activities likely to trigger or exacerbate tension and violence in the country.
Most conspicuous
The ICC went on recess on December 16, the same day it declining to confirm charges of crimes against humanity and war crimes on Rwandan rebel leader, Mr Callixte Mbarushimana. He was released from ICC custody on December 23 and flown to France for refuge.
During the recess, the Assembly of 120 States that are parties to the Rome Statute held their 10th session at the UN headquarters in New York in December and among other things nominated Ms Fatou Bensouda to replace Luis Moreno Ocampo who has retired as the Prosecutor.
Ms Bensouda, a Gambian national who was Moreno-Ocampo’s deputy, was the most conspicuous in the prosecution team during the confirmation hearings of the six suspects. And she has given the earliest indications that like her predecessor she would be very decisive in ensuring that the Kenyan cases go the full length of justice.
Under Article 61(7) of the Rome Statute, Pre-Trial Chamber II, comprising of judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser shall determine whether there is sufficient evidence to commit the six suspects to trial.
Military chiefs
If the charges are not confirmed, the ICC Prosecutor shall be free to request for another confirmation hearing after gathering fresh evidence.
On the other hand, if the charges are confirmed, the prosecutor will still be free to amend them with the permission of the court. However, if new charges are added, another confirmation hearing must be conducted.
Should the case go to trial, the Pre-Trial Chamber trio will no longer be involved and the President of the court will select a three-judge bench from the eight judges of the Trial Division to hear the cases.
One of the judges who sit in this division is a Kenyan national, Lady Justice Joyce Aluoch, who moved to the ICC from the Court of Appeal in Nairobi in 2009. It is, however, highly unlikely she would be picked to sit on a bench to try the six, if the charges were confirmed.
In any event, Justice Aluoch is involved in the trial of the Democratic Republic of Congo’s former rebel leader Jean-Pierre Bemba in Trial Chamber III, and is also the presiding judge in the case against former Sudanese military chiefs Abdalla Banda Nourain and Saleh Mohammed Jerbo in Trial Chamber IV.
Reasonable doubt
Other judges in the Trial division are Sir Adrian Fulford from the UK who is the President of Division, Fatoumata Dembele Diarra of Mali, Elizabeth Odio Benito of Costa Rica, Bruno Cotte from France, Christine Van den Wyngaert from Belgium, Kuniko Ozaki from Japan and RenĂˆ Blattmann of Bolivia.
So far 14 cases from seven countries have been taken to the ICC. Six suspects have been committed to trial and the court has declined to confirm two cases.
Should the Kenyan cases proceed to trial, the Prosecution will be required to prove the charges beyond reasonable doubt.
The Trial Chamber, may order for disclosure of information that was not disclosed during the Pre-trial hearings, but also has mechanisms for protecting witnesses.

No comments:

Post a Comment