Defence teams hint on how they plan to demolish Ocampo's evidence

By Evelyne Kwamboka at The Hague and Wahome Thuku in Nairobi

Confirmation hearings on the crimes against humanity charges Prosecutor Luis Moreno-Ocampo seeks to prefer against three Kenyans took off on a heavy and yet serious tone.

Throughout the proceedings that ran for close to seven hours, with breaks, the defence, victims’, prosecutorial and the judicial benches showed the 11-day process would not only be electrifying to Kenyans, but all the four sides to it won’t be mincing words and intend to give their best to the case before them.

Eldoret North MP William Ruto (second left) and radio presenter Joshua Sang (right) arrive on Thursday at the International Criminal Court, at The Hague, Netherlands, for the confirmation hearings of their charges. [PHOTO: EVANS HABIL/ STANDARD]

On Tuesday, the defence teams for Eldoret MP William Ruto, Tinderet MP Henry Kosgey and Kass FM’s head of operations Joshua arap Sang tore into the investigations Moreno-Ocampo claims to have carried out on the Kenya case.

It also emerged that the linchpin the defence has taken will not only be discrediting of Moreno-Ocampo’s investigations, but also challenge of International Criminal Court’s jurisdiction over the Kenya case.

Heat on ocampo

The defence will also be turning the heat on Moreno-Ocampo over what it has consistently accused him of not having done –investigating the other side of the account.

They will also seek to combat the Prosecutor’s argument that their clients had a common agenda and acted from the script of an organisational policy.

The defence team will be asking the court to look at the definitions of groups and organisational policy as spelt out in the law and to apply them strictly.

Despite reminders that Tuesday’s proceedings were for the lawyers to address issues touching on admissibility and procedure, the lawyers appeared too eager to discredit Moreno-Ocampo’s evidence.

He watched as lawyers David Hooper, George Oraro, and Kigen Katwa tore into his allegations.

These are the lawyers who have been burning the mid-night oil since Moreno-Ocampo released the document containing charges against their clients by pointing out contradicting information filed by the Prosecutor at the court’s registry.

When he took the stand to address the court, Ocampo defended the allegations on grounds that his office has evidence showing Ruto, Kosgey, and Sang organised the attacks that left several people dead and others injured.

Hooper, who represents Ruto, said Ocampo had filed in court slanted evidence, adding that had he gone to the Rift Valley to investigate, he would have found evidence exonerating his client.

They now want the court to exercise its jurisdiction and dismiss the allegations by Ocampo, on grounds that he presented contradictory evidence to the court, and did not investigate before framing the allegations.

The court was told Ruto tried presenting himself to the prosecutor to give his side of the story, but he "ran away".

Katwa argued the defence refutes any suggestion that Ruto or any associate personally provided weapons, telephones, fuel or transport for attacks, or of having used his personal funds to sponsor criminal activity.

"The Defence notes that the Prosecution relies on anonymous witnesses only in support of these allegations. It has failed to produce any tangible evidence, such as pictures, transaction or purchase receipts notwithstanding that the collection of such evidence should be within the Prosecution’s investigative ability, if it in fact exists," he told the court.

The defence teams asked the court to reconsider what it has earlier ruled that it has power under the Rome Statute to hear the Kenya case.

Jurisdiction

Katwa accused Ocampo of having failed to comply with Article 54 of the Rome Statue to investigate the exonerating evidence. Oraro, representing Kosgey, said the question of jurisdiction of the court was central to their case.

In the coming days the defence team will be revisiting in details of whether the charges leveled against their clients meet the threshold of the Rome Statute.

And they will be pushing the Chamber to hold that the national courts should deal with the charges of this nature.

Article 7 lists several acts, which constitute crimes against humanity when committed as part of a widespread or systematic attack directed against any civilian population.

The Article further defines such attack as a course of conduct involving the multiple commissions of the listed acts, pursuant to or in furtherance of a State or organisational policy.

The court has previously considered that line of submissions and ruled that there was organisational policy in the attacks and hence it had jurisdiction to handle the case.

Indeed the presiding judge Justice Ekaterina Trendafilova reminded Oraro that much of the issues he dealt in his submissions were on the main thrust of the case rather than on the procedural aspects.

Kosgey filed his motion on August 30, challenging the jurisdiction of the court.

Oraro submitted at length on the legal position of organisational policy.

While the defence intends to differ with the majority ruling in the Pre-trial Chamber II, they will be relying heavily on the dissenting ruling by one of the judges who disagreed there was an organisational policy to Kenya’s post-election violence.

"This is the first opportunity to raise the issue of jurisdiction in this court, and we ask the court to reconsider earlier parameters in determining the issues," Katwa submitted.

He said defence presentations had not been taken on board when the court made the earlier ruling on jurisdiction, and should reconsider the position taking on board the emerging arguments.

"You have now two sets of facts one by the Prosecutor after conducting investigations and after purporting to have conducted the alternative investigations, and the second which is presented by the defence," argued Katwa despite being restrained several times not to go into the merits of his client’s case.

Article 54 (a) requires that in order to establish the truth, the Prosecutor shall extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally.

The truth

"This Article requires the prosecutor to take proactive role," Katwa submitted, adding the Prosecutor ran away from opportunity to know the truth.

Katwa also questioned the alleged existence of the Sh2.1 billion to facilitate the commission of the acts.

The test, he said would be to consider whether that kind of money existed either in cash or in bankaccount.

"If the Prosecutor investigated, he would have provided the court with the evidence and in absence of it you should not confirm the charges," Katwa said.

Katwa will also be attacking what he pointed out as contradictions of facts and figures in the charges particularly on the numbers of people killed, maimed or displaced.

He argued that the suspects were not in command of a group as claimed since in the elections they did not get 100 per cent of the votes in their constituencies.

Some of the questions he wants the court to look at are who were the actual communities targeted or the groups.

The judge reminded him that he should stick to the schedule and deal with observations on the procedural matters and jurisdiction of the court.

The ODM and the Kalenjin quoted as the group had not been created or initiated for violence furtherance, he further argued.

He said there were no transcripts to show that Sang invited anyone to attack civilians. "And there is no place called Nandi Hill town in Uasin Gishu District," he added. He urged the court to consider the geographical perimeters.

He further pointed out that Party of National Unity, as a political party, did not exist at the time the suspects are said to have attacked its supporters.

He said Kenya was not a country to fall into the proceedings of the ICC as it had an effective police, judiciary, media and legal system.

After the confirmation hearings for the three, which began on Thursday and will run for 11 days, with an extra day in case it would be needed, the judges will have 60 days to deliver their ruling during which they can decline or confirm either all or some of the charges.