Bensouda seeks to beef up ICC charges

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International Criminal Court (ICC) Chief Prosecutor Fatou Bensouda wants extra crimes added to the charge sheet of Kenyans facing trial at The Hague. Photo/AFP 

By OLIVER MATHENGE omathenge@ke.nationmedia.com
Posted  Friday, July 6  2012 at  23:30

IN SUMMARY

• Uhuru, Ruto and Muthaura could now be charged with ordering, soliciting or inducing crimes during chaos

International Criminal Court prosecutor Fatou Bensouda wants extra crimes added to the charge sheet of Kenyans facing trial at The Hague in a fresh bid to secure their conviction.

Ms Bensouda appears not satisfied with how her predecessor, Mr Luis Moreno-Ocampo, structured the cases and is seeking to introduce new elements.

The prosecutor, who took over last month, appears to be preparing to assert her own style in dealing with the cases kicked off by Mr Moreno-Ocampo.

Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto and former head of public service Francis Muthaura could now be charged with ordering, soliciting or inducing crimes committed during the post-election violence.

In a move aimed at tightening her case against the three, Ms Bensouda is asking Trial Chamber V to consider distributing the charges in more than one category. The prosecutor wants the court to allow her to introduce many avenues by which the court can find them guilty of crimes against humanity.

The prosecutor in the Special Court for Sierra Leone found former Liberian President Charles Taylor guilty of aiding and abetting war crimes after similar adjustments.

If allowed, the changes would increase the chances of the prosecution securing a conviction against the accused.

Originally, the charges against the three were only be categorised as co-perpetration but Ms Bensouda believes that this is not the only way that they can be characterised.

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On Monday, the prosecutor told the trial chamber judges that Mr Muthaura and Mr Kenyatta “specifically directed the Mungiki to commit the crimes in Nakuru and Naivasha.”

She argues that the specific facts of Mr Kenyatta’s and Mr Muthaura’s case reflect that indirect co-perpetration is not the sole manner in which their individual criminal responsibility can be characterised.

The prosecutor claims that Mr Ruto was in charge of appointing commanders and divisional commanders and assigning them to specific areas and locations to operate in.

“The prosecution acknowledges that the accused’s criminal responsibility could equally be characterised as ordering, soliciting or inducing; aiding, abetting or otherwise assisting; or contributing in any other way to a crime committed by a group of persons acting with a common purpose,” Ms Bensouda argues.

But Mr Muthaura’s lawyer, Mr Karim Khan terms the application as premature, saying it “amounts to alternative charging through the back door,” but the prosecutor denies this.

“These were charges not drafted by the judges but put forward by the prosecution and it seems that for unexplained reasons, the prosecution is now getting jittery and saying, ‘Well, maybe not this and maybe that’,” Mr Khan argues.

Nairobi lawyer Ashford Mugwuku said that the prosecution was not trying to change the charges as this would require the process to start again. Instead, he said, it was trying to avoid a situation where the facts of the case were insufficient.

“They want to make the case more watertight and seal all the loopholes that may exist ,” Mr Mugwuku said.

Another international crimes lawyer, Mr Mokaya Orina, said that re-characterisation could only happen in regard to facts and not have an effect of changing the charges or mode of charging.

He added that the Appeal’s Chamber in the Thomas Lubanga case rejected an attempt by victims representatives to seek a re-characterisation that had an effect of adding new charges.

“In line with the Lubanga case, the prosecutor will not succeed in seeking re-characterisation of facts which has an effect of changing the mode of liability. It will violate the principle of giving sufficient notice to the defence of the charges,” Mr Orina told the Saturday Nation.