ICC Pre-Trial Chamber throws out suspects’ appeals request

By Alex Ndegwa

The International Criminal Court Pre-Trial Chamber judges have decided not to allow four Kenyans accused of crimes against humanity to appeal their committal to trial.

The judges found the issues raised by Uhuru Kenyatta and Francis Muthaura in their applications to be disagreements of the majority decision, not grounds for appeal. They also dismissed objections by William Ruto and Joshua Sang about the quality of investigations done by ICC Chief Prosecutor Luis Moreno-Ocampo.

Uhuru Kenyatta and Francis Muthaura

Under the rules of the International Criminal Court, the Pre-Trial Chamber must give leave or permission for an appeal of a confirmation of charges decision. The judges only allow appeals on a limited number of grounds.

By rejecting the applications by the four, the judges have paved the way for the four to appear at The Hague to stand trial. The decision is also a blow to planned presidential campaigns by Uhuru, a Deputy Prime Minister, and Ruto, Eldoret North MP, as they must be present at The Hague should trials begin.

This is the second setback in a week for the Ocampo Four, following another ruling last week by the ICC Appeals Division that their trials can go ahead pending determination of their appeal on jurisdiction. The defendants’ only hope to avoid trial now lies in the deliberations by the Appeals Chamber on whether the ICC has jurisdiction to try the two Kenya cases.

No sufficient grounds

On Friday, Pre-Trial Chamber II Judges Ekaterina Trendafilova and Cuno Tarfusser ruled the four did not establish sufficient grounds to obtain clearance to appeal against the January 23 majority decision to confirm charges against them.

Joshua Sang

Judge Hans-Peter Kaul did not assess the pleas because he has repeatedly dissented in past rulings, arguing the ICC lacks jurisdiction.

The judges dismissed eight issues on which Muthaura’s defence sought leave to appeal the decision to commit him to trial, as well as five raised by Uhuru’s lawyers. The two had, among other things, contested what they described as reversal of the burden of proof and alleged prosecution failures to investigate issues that would have proved them innocent.

Uhuru had also challenged the reliance on anonymous witnesses and indirect evidence from unreliable sources.

The DPM had attacked evidence in relation to the allegation by one prosecution witness of a meeting at State House with members of the Mungiki, which it is alleged Uhuru, Muthaura, President Kibaki and others attended. Moreno-Ocampo has painted this as a preliminary contact with the group that was later involved in bloody reprisals.

"The Chamber considered all Defence evidence before it relating to the whereabouts of Mr Kenyatta on November 26, 2007, December 30, 2007 and January 3, 2008," said the judges. "The Chamber observes that the Defence merely argues that the Chamber should not have attributed ‘excessive weight’ to the evidence of Witness Number 4, but should have found the Defence evidence more persuasive."

State House officials have denied allegations Mungiki members attended meetings with the President or other senior officials.

Ruto and Sang raised eight issues, including contending Moreno-Ocampo did not conduct proper investigations, which were, too, rejected by the judges.

William Ruto

Following the ruling, the Chamber ordered the Registrar to transmit to the ICC Presidency the decision on the confirmation of charges together with the record of the proceedings in the cases. ICC President Justice Sang-Hyun Song will then set up a Trial Chamber to hea the cases. When the trials start, all four suspects will have to be present in court throughout the proceedings.

The pre-trial judges directed the Registrar to remove the names of former police chief Hussein Ali and Tinderet MP Henry Kosgey from the case names in new filings. The two were let off the hook when the judges did not find evidence to confirm the charges against them.

The judges also ruled Mr Essa Faal, a former Senior Trial Lawyer at the Office of the Prosecutor, is free to represent Muthaura at The Hague trials. They rejected Moreno-Ocampo’s opposition to Faal’s involvement saying there was no conflict of interest.