Sunday, January 22, 2012

What gives Uhuru and Ruto such confidence?



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By KWENDO OPANGA
Posted  Saturday, January 21  2012 at  18:17
Have you noticed that Mr Uhuru Kenyatta and Mr William Ruto and those close to them are looking and sounding a tad confident when they talk about the possible outcome of the International Criminal Court (ICC) confirmation verdict expected tomorrow?
Do they know something that the rest of us do not? Both men are not saying that their cases will not go to full trial. Rather, they are quick to point out that their names will be on the presidential ballot irrespective of the verdict.
Mr Kenyatta is quick to add that his run is predicated on his vision for Kenya and not what happens at ICC ditto a self-assured Ruto.
The two would appear to have been going over the December 16, 2011 ruling of the ICC Pre-Trial Chamber with a fine toothcomb.
The Chamber cleared Rwandan Callixtel Mbarushimana of war crimes and crimes against humanity he was alleged to have committed in the Democratic Republic of Congo.
And, having drawn parallels between the charges that Mr Mbarushimana faced, the evidence Chief Prosecutor Luis Moreno Ocampo presented against him and the submissions of the judges, with the allegations made against them, Mr Kenyatta and Mr Ruto appear convinced they could escape full trials.
Why is the acquittal of Mr Mbarushimana of such interest to Mr Kenyatta and Mr Ruto as, indeed, to Mr Henry Kosgey, Mr Hussein Ali, Mr Francis Muthaura and Mr Joshua Sang? Because:
• He faced five counts of crimes against humanity and eight counts of war crimes, including murder, torture, rape, inhumane acts and persecution, and destruction of property through the Democratic Forces for the Liberation of Rwanda (FDLR);
• In freeing Mr Mbarushimana the Pre-Trial Chamber judges held, by a majority, that there was not sufficient evidence to establish substantial grounds to believe that the man could be held criminally responsible;
• Mr Kenyatta’s counsel argue that the judges were clear that whether it is a war crime or any other charge, the prosecution needed to go beyond the findings of Human Rights Watch to prove the truthfulness of the allegations levelled against Mr Mbarushimana;
• The judges failed to find evidence that linked Mr Mbarushimana directly to the crimes he was alleged to have committed in the Kivus in the Democratic Republic of Congo;
• That the Pre-Trial Chamber was not satisfied that the prosecution had investigated both incriminating and exonerating circumstances equally yet Mr Mbarushimana had ordered that civilians be not attacked;
• The judges said there were substantial grounds to believe that elements of FDLR committed war crimes in 2009, but failed to classify the attacks on civilians as crimes against humanity.
Did this ruling set a precedent for Judge Ekaterina Trendafilova & Co? Mr Kenyatta and Mr Ruto believe so.
Their counsel are therefore arguing that for their men to go to full trial, the Pre-Trial Chamber II must be persuaded that Mr Ocampo’s evidence went beyond what the Kenya National Human Rights Commission alleged against them.
In other words, they do not think he did and they further hold that the witnesses, who remained anonymous, are not credible.
Mr Kenyatta’s aides are also holding out hope that the judges will find his appeal to youth in Kiambu and elsewhere not to attack non-Kikuyu’s exonerating.
Therefore, Mr Kenyatta and those in his corner must be keeping their fingers crossed in the hope that their lawyers put as much distance as possible between their man and the Mungiki militia accused of carrying out the killings in Naivasha.
Conversely, Mr Ruto must be praying that Ocampo & Co did not establish a definite link between him and the Network they alleged organised and executed the violence against non-Kalenjins in the Rift Valley.
A source close to Mr Kenyatta’s corner told me that they believe the case against Mr Mbarushimana may have turned on this fact: FDLR soldiers had orders to flatten anything and everything standing, but Mr Mbarushimana asked for civilians to be spared.
But, should Mr Mbarushimana’s acquittal not have set the precedent Mr Kenyatta and Mr Ruto are seeing and believing should they be eligible to run for the presidency?
How could they? Just look at the crimes we are talking about. Second, they will have to be resident in The Hague for the duration of their trials.
Count out a presidential campaign by remote control. The time is short, but the wait for tomorrow and the Pre-Trial Chamber’s verdict will be very long indeed.
Kwendo Opanga is a media consultant opanga@diplomateastafrica.com

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