Ocampo lays ground for showdown at full trial

By WAHOME THUKU

Outgoing International Criminal Court Prosecutor Luis Moreno-Ocampo has set the stage for a showdown with four high profile Kenyans fighting committal to full trial for crimes against humanity.

Moreno-Ocampo on Wednesday filed his response to the appeals lodged by the four, who are clustered in two separate cases, with the ICC Appeals Chamber.

The prosecutor, whose term ends in June, is asking the five judge-Bench to send the cases against Deputy Prime Minister Uhuru Kenyatta, former Head of Public Service, Francis Muthaura, Eldoret North MP, William Ruto, and Kass FM head of operations Joshua arap Sang to the Trial Chamber.

That application if granted could have grave consequences particularly for Uhuru and Ruto, who are in the race to succeed President Kibaki. It could mean the General Election might find the two facing full trial at The Hague. This could complicate their presidential ambitions.

It could just be the breaking point in their quest for president, as it could be argued, assuming they lose the appeal against full trial, they would have to wait until the judgement is delivered.

So far 14 cases, all from seven African countries, have been taken before the ICC. Four of them with 10 suspects have reached the trial stage. None of the trials has started earlier than a year after the confirmation of the charges.

A full trial in the Kenya cases would thus find Uhuru and Ruto either in government or outside as ordinary citizens — depending on how their individual political ambitions will turn out. The new Constitution does not create a soft landing for presidential race losers.

The four suspects are facing charges of crimes against humanity, arising from the 2007-2008 post-election violence.

Two judges of the Pre-Trial Chamber confirmed the charges on January 23. One judge, Hans Peter Kaul, dissented holding that the threshold of an "organisation policy" in the violence was not established in the two cases.

Uhuru and Muthaura have filed a joint appeal while Ruto and Sang have filed the second. Each of the groups has filed four main grounds of appeal.

Uhuru and Muthaura argue partly that the Pre-Trial Chamber that committed them to full trial erred by adopting incorrect interpretation of the term "organisation and by considering Mungiki to be an organisation under Article 7(2)(a) of the Rome Statute.

judges error

The have challenged the court over the conclusion that Party of National Unity youths were part of the Mungiki sect members used to commit retaliatory attacks in Naivasha and Nakuru in 2008.

Their point is that for a private entity to be an organisation, which is a structured entity complete with chain of command, under the Statute it must have State-like characteristics such as territorial control.

Ruto and Sang are also challenging the Pre-Trial Chamber’s decision on the definition of the organisation they allegedly led which in the Pre-Trial hearing was referred to as "the network".

They argue that the chamber erred in finding that the so-called ‘network" of Orange Democratic Movement leaders and other personalities allegedly headed by Ruto was an organisation under the law.

Moreno-Ocampo has responded in equal measure describing the twin appeals as lacking merit and seeking a leap into the full trial. He says the issues they have raised would be determined as they anchor his case against them.

In the response signed and filed on Wednesday, the prosecutor says the appellants had failed to show any error in the reasoning and finding of the Pre-Trial Chamber worth intervention of the Appeal Chamber.

"The appellants’ arguments that the concept of organisation and the purported insufficiency of evidence adduced by the prosecution are not jurisdictional issues and should be decided at the trial," he says, defending the Chamber’s findings as the correct interpretation of the law.

He argues the chamber had adopted the correct interpretation of the Statute when it ruled that private groups can constitute an organisation under the Statute and that the precise structure of the organisation will depend on the facts of the case.

"The finding that the Mungiki was an organisation under the Statute is consistent with the prosecution’s submissions," he submitted.

trial matter

Moreno-Ocampo says the issues of whether Mungiki qualifies to be called an organisation is one of statutory interpretation, and does not relate to the authority of the court to hear and determine the cases; hence it should be raised at the trial.

He says the Pre-Trial Chamber was right in finding that Mungiki was an organisation with capacity to commit widespread or systematic attacks on civilians.

He says the court’s finding was that PNU youths recruited into Mungiki became part of the organisation for committing the crimes.

Moreno-Ocampo argues that the appellants had failed to demonstrate the existence of any "reversible error" in the ruling and the grounds of appeal should be dismissed.

"An appellant is obliged not only to set out the alleged error, but also to indicate with sufficient precision how the error would have materially affected the decision," he submits.

party objectives

Ruto and Sang argue that if the ‘Network’ in their case comprised eminent ODM representatives, the court should have found that it was purely for achieving the party objectives and not for punishing the PNU followers as the prosecution asserted.

But Moreno-Ocampo maintains that evidence produced in court, including that of purchase of weapons, transportation of perpetrators to target areas, and establishment of scheme for paying them was not a pro-ODM political objective.

"These are actions clearly directed at a policy to carry out attacks against a civilian population," Moreno-Ocampo submitted.

"After a thorough assessment of evidence the majority (of judges) found that the Network had responsible command and established hierarchy, with Ruto as the leader and that it possessed the means to carry out widespread or systematic attacks against civilian populations," he went on.

He also dismissed claims that the judges relied on anonymous witnesses to get to the conclusion, saying the court had a right to do so at the confirmation stage.

Moreno-Ocampo says the Pre-Trial Chamber had correctly found that the case fell within the jurisdiction of the ICC. He wants the suspects compelled to raise their issues at the trial itself

APPEAL JUDGES

Since last month the parties have been dealing with the applications by the four suspects for permission to appeal and for suspension of the Pre-Trial Chamber ruling.

Five judges would determine the appeal: Akua Kuenyehia, Sang Hyun Song, Judge Erkki Kourula, Anita Ušacka, and Daniel David Ntanda Nsereko. The judges may make their decision based on the paper work filed before them or by asking the lawyers to appear in court and make oral submissions.

Should the case go to full trial, the suspects may never face Moreno-Ocampo again as he is set to retire. His replacement Ms Fatou Bensouda will, however, be a force to reckon with, as she was instrumental in the confirmation hearings.