Judge gave hope to Ocampo Four but chamber dissented

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PHOTO/FILE Justice Peter-Kaul was of the view that Mungiki and the Network whose structures the accused are alleged to have used to commit the crimes did not meet the attributes of an “organisation” as envisaged in Article 7 of the Rome Statute 

By EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted  Saturday, May 26  2012 at  21:49

Mr Justice Hans Peter-Kaul, the German pre-trial judge in the Kenyan twin-cases at The Hague has been a source of hope for the four suspects charged with crimes against humanity.

While accepting that crimes were committed in Kenya during the 2007/8 violence, he, however, strongly argued that they were common mass crimes which should be handled by local justice system, not the International Criminal Court (ICC).

In his dissenting ruling, which would later become a strong pillar in the defence of the four accused, the judge held that the crimes did not fall within the armpit of the court because, in his view, the prosecutor had not proved that they were committed in “furtherance of an organisational policy”.

Therefore, he argued, the ICC should decline jurisdiction of the case of Deputy Prime Minister Uhuru Kenyatta, Ambassador Francis Muthaura, Eldoret North MP William Ruto and journalist Joshua arap Sang.

Simply, Justice Peter-Kaul was of the view that Mungiki and the Network whose structures the accused are alleged to have used to commit the crimes did not meet the attributes of an “organisation” as envisaged in Article 7 of the Rome Statute.

And without this element, he said the Kenyan cases ware an “unnecessary burden” on the ICC. This is the argument that the suspects’ lawyers deployed in the jurisdiction appeal, which was rejected on Thursday.

Mr Kenyatta’s lawyers accused the pre-trial judges of adopting an “expansive new definition” of organisation. They wanted the court to take up a narrower, conservative definition.

In their appeal, the accused had asked the ICC to agree with Justice Peter-Kaul’s argument and order that the case be discontinued.

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Significantly, had the appeal court agreed with the dissenting judge’s reasoning, the cases would have collapsed. So far, the jurisdiction appeal remained the only hope of stopping the cases through court action.

The five appeal judges rejected Justice Peter-Kaul’s argument, effectively bringing to closure the whole debate of organisation policy in the twin cases.

The decision is also a blow to the defence teams because the Peter-Kaul definition of organisation has been the central narrative in their battles to save the accused.

Most of the defence application filed before the court – including those by government lawyers – have tended to amplify the German’s position.

In their May 24 decision dismissing the appeal, the judges agreed with the prosecutor that the issues raised by the accused were not of a jurisdictional nature.

Instead, they touched on the merits of the prosecutor’s allegations which should be tested during trial.

“As the prosecutor has expressly alleged crimes against humanity, including the existence of an organisational policy, the Appeals Chamber finds that the Court has subject-matter jurisdiction over the crimes with which Mr Muthaura and Mr Kenyatta have been charged,” they ruled.

“Whether the Prosecutor can establish the existence of such a policy, in law and on the evidence, is a question to be determined on the merits.”

In their January 23 ruling committing the accused to trial, the other pre-trial judges, Lady-Justice Ekaterina Trendafilova and Mr Justice Cuno Tarfusser, had reinforced their initial decision that the Mungiki and the Network qualified as organisations.

They said that for an entity to qualify as an organisation it must have a well defined structure and chain of command, a mode of ensuring compliance with directives from commanders, an armed wing, control territory and a regular source of income which can enable it to provide key services to a section of population. More importantly, the entity’s primary mission must be committing criminal activities against civilians.

Using this criteria, they concluded that Mungiki was a well-structured organisation under the control of Mr Maina Njenga.

But the fundamental difference was Justice Peter-Kaul’s argument that Mungiki did no qualify as an organisation because it did not bear “state-like characteristics,” a position on which the defence hinged their appeal.

According to the prosecutor’s witnesses, the Mungiki hierarchy had Mr Njenga at the top as the chairman. Below was the High Office which took instructions from chairman, then the regional chairmen who reported to High Office and local chairmen who were Njenga’s “eyes” at the grassroots.

Mr Njenga has since denounced the movement and denied any participation in the violence. The other judges were equally persuaded that Mungiki had a well-trained quasi-military wing.

In addition, they were convinced that Mungiki controlled and provided essential social services such as electricity, security and toilets in city slums.

In fact, they indicated that witness statements by Mr Kenyatta’s witnesses Lewis Nguyai (Kikuyu MP) and former Juja MP George Thuo helped corroborate evidence that Mungiki had access to income through extortion and levies.