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Saturday, January 21, 2012
Kenyans wait anxiously for ICC ruling on Monday
By Wahome Thuku in The Hague and Isaac Ongiri
There was anxiety as the International Criminal Court (ICC) finally disclosed the outcome of the ruling on the cases of the ‘Ocampo Six’ would be known on Monday in The Hague.
A statement by the ICC Friday said the decision would first be communicated in writing to all the parties and their counsel.
Deputy Prime Minister Uhuru Kenyatta (left) and Eldoret North MP William Ruto will be counting hours to the International Criminal Court ruling that may influence their presidential ambitions. [PHOTO: FILE/STANDARD]
The judges of Pre-Trial Chamber II (Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser) will appear publicly in the courtroom I at 11.30am The Hague time (1.30pm Kenyan time) for the sole purpose of informing the public about the outcome of their decision.
"Neither the parties nor the participants will be present in the courtroom during the appearance," the statement read.
The ICC has, however, made elaborate preparation for media coverage of the event.
On Tuesday, January 24, 2012, at 2pm, the Chief Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, will hold a press conference in relation to the situation in Kenya at the ICC’s Press Briefing Room.
The Standard On Saturday has learnt that members of the Cabinet sub-Committee on ICC chaired by Internal Security Minister George Saitoti are on standby for a crisis meeting soon after the outcome of the cases is known.
The Attorney General, the Government chief legal advisor, has also been sketching the various scenarios the rulings would present.
If any of the suspects who are still holding public office would be required to go for trial, President Kibaki and Prime Minister Raila Odinga would have to decide whether it would be tenable for them to continue in their positions.
Three suspects, Deputy Prime Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura, former Police Commissioner Hussein Ali are charged in one case, while Eldoret North MP William Ruto, his Tinderet counterpart, Henry Kosgey, and Kass FM broadcaster Joshua arap Sang are facing other charges in a different case.
Mr Ruto and Mr Kosgey are charged with being co-perpetrators of murder, forcible transfer of populations, and persecution. Sang is accused of being a contributor to the same set of crimes.
Mr Uhuru and Mr Muthaura are accused of being co-perpetrators of murder, forcible transfer of population, rape, persecution, and other inhumane acts. Ali is accused of contributing to their commission.
The actual ruling date had been kept secret until yesterday, heightening tension and speculations that it could be any time. International law experts say it was a strategy to ease tension ICC acknowledges.
And as Kenya waited anxiously, Justice Trendafilova, Justice Kaul, and Justice Tarfusser spent Thursday in a relaxed mood. They joined other ICC officials in a ceremony to welcome the Republic of Cape Verde, which is the latest State to sign the Rome Statue, which establishes The Hague-based court.
If any of the cases is confirmed for hearing, the political landscape could change drastically.
Analysis of evidence
But even as Kenyans await the verdict of the International Criminal Court on the confirmation hearing cases against the Ocampo Six, the judges would consider several factors:
Lawyer Wahome Gikonyo said the judges would have to evaluate every detail before them as they decide the fate of the case whose verdict the whole world awaits.
"No single ruling has in the past attracted so much attention and caused so much anxiety, as this particular one. It will be a precedent setting decision sending shock waves across the world," said Gikonyo.
According to lawyer Gikonyo actual background of the scenario as it was in the 2007-2008 post- election crises will be considered with factual details of what happened in hotspots being evaluated.
Core to the Monday decision will be the analysis of evidence presented by both the prosecutor and the defence and whether they were sufficient to establish substantial grounds to believe the six committed the crimes as alleged.
Also to be reviewed with a toothcomb is whether allegations by the defence that the Prosecutor’s office failed to comply with its obligation under Article 54 of the Rome Statute to investigate and to collect exonerating and incriminating evidence is legitimate.
Statements from anonymous witnesses by the prosecutor and the defence and the determination of the probative values of summaries of the interviews by the judges will also be key in the determination of the momentous decision.
Further in the evidential analysis the issue of contradictions by both the prosecutorial and defence witnesses will be on focus to help the judges make certain conclusions.
Material elements of the alleged crimes will be reviewed. The judges will pay attention to factual occurrences and answers to question whether there was actually violence.
In an interview, lawyer Godfrey Musila said that nobody can pretend to know what the verdict would be, but reiterated that one of at least four things would happen on Monday.
"Either all the charges are thrown out, some charges are confirmed, or all the charges are confirmed, or the prosecutor asked to undertake further investigations," said Musila.
Musila, who is also the director of the African Centre for International Legal and Policy Research, said it would be highly unlikely that the judges will go outside the evidence provided by the Office of the Prosecutor and Defence in ruling.