The Hague date is here for Ocampo six

By Moses Njagih

The actual courtroom process at the end of which The Hague judges will determine if three high-profiled Kenyans should be tried for crimes against humanity finally starts on Thursday afternoon.

Capturing the attention of Kenyans and the international Press will be the faces of the three Kenyans who left for The Hague early in the week. They are Eldoret North MP, William Ruto, Tinderet MP, Henry Kosgey, and Kass FM head of operations, Joshua arap Sang.

Henry Kosgey

Reports from The Hague indicated the three in the International Criminal Court cases, which involve six suspects, were on Wednesday sprucing their defence, with their lawyers. The lawyers travelled ahead of them.

They are all required to have taken their positions in the court at 2:30pm (3:30pm in Kenya), when Justice Ekaterina Trendafilova, the presiding judge, calls the court to order.

The confirmation hearings for Ruto, Kosgey and Sang will run until September 12. The court has already ruled the suspects will have to be present in court during the proceedings, quashing a request Ruto had made to be given leave to attend to "personal matters" back home.

Deputy Prime Minister and Finance Minister Uhuru Kenyatta, Head of the Civil Service, Francis Muthaura, and former Police Commissioner, Hussein Ali, appear for their turn of confirmation hearings beginning September 21.

Thursday marks the start of the phase in which Prosecutor Luis Moreno-Ocampo, who has said he would not have live witnesses, will produce part of his evidence to have the charges against the suspects upheld.

The suspects will, on their part, strive to fight off the evidence Moreno-Ocampo will give to have the cases thrown out at this stage.

On Wednesday, defence lawyers for Ruto, Kosgey, and Sang visited the Case Management Office at ICC, to ensure that all materials required for the hearing and other logistics were in place.

William Ruto

This took place despite the fact that it was Id Ul-Fitr holiday in The Hague, and most places were closed.

Ruto, Kosgey, Sang and their defence teams are staying at Kurhaus, a five-star beach hotel in the Den Haag section that hosts the ICC.

Sources in the legal teams told The Standard they decided to stay with the suspects so that they give proper briefs to their clients.

"We are together with our clients at the same hotel, as we make final touches on the submissions beginning tomorrow," said one of the lawyers.

On Tuesday ICC rejected efforts by Ruto to be exempted from attending the whole proceedings for the confirmation of charges. He would now have to stay at The Hague for 12 days.

ICC spokesman Faadi El-Abdalla explained the Pre-Trial Chamber II presided over by Lady Justice Trendafilova made the decision. Ruto had applied to the court to waive his right to be present for the whole hearing.

His associates say the minister wanted to return in time to graduate for his Masters in Science degree at the University of Nairobi on September 9.

Still on Wednesday, El Abdala said the court did not open because it was a public holiday in The Netherlands, but on Thursday it will be on.

"We will be back in court on September 1, for the confirmation of charges hearings," said El Abdala.

Joshua arap Sang

Moreno-Ocampo has said the confirmation of charges hearings also protects suspects against wrongful and unfounded claims and charges.

The confirmation of charges hearings has a limited scope and cannot be seen as an end in itself. It is a means to distinguish cases that should go to full trial from those that should not.

Two witnesses for each suspect expected to testify are also being held at a location in the Den Haag area.

Unlike April when MPs allied to the suspects thronged The Hague, not much fanfare has been witnessed this time round.

But the stage is set for the start of Ruto’s case, which is expected to kick off on Thursday at 3:30pm.

Ruto’s team will start putting a defence against accusations that, together with Kosgey, and Sang, they bear part of the greatest responsibility for the 2007-2008 post-election violence.

Another three – Deputy Prime Minister Uhuru Kenyatta, Muthaura and Ali – will be heading to the court for similar hearings later this month.

During the hearing, which kicks off on Thursday, the onus will be on the Prosecutor to convince the court that he has enough evidence to warrant Ruto, Kosgey and Sang face full trial for crimes against humanity.

It is upon the Prosecutor to prove to the court that the three played roles in the post-election crimes, and that their crimes merit trial at the court as they fall under the category of international crimes.

The ICC programme shows proceedings for the confirmation hearings starts at the lunch hour, Kenyan time, with the introduction remarks from Judge Trendafilova.

According to the rules of the court, parties are required to adhere to their stipulated time.

As was the case when the suspects first appeared before the court, only parties, participants and relevant members of the division of court services will be allowed in the courtroom.

After the introductory remarks, which will take the chamber’s lead judge 30 minutes, the defence team of each of the three suspects will be granted an hour to make their observations on the admissibility of the cases against their clients and procedural matters.

Once the defence lawyers finish their submissions, Moreno-Ocampo will be granted time to make his response, before the close of today’s court business at 9pm, Kenyan time.

But it is on Friday when the evidence will start rolling. Moreno-Ocampo will be expected to start tabling before court his evidence on post-election crimes. He would be expected to prove that each of suspects is liable and thus deserve to face trial.

The Prosecutor’s presentation of evidence, which will start at 1:30pm at The Hague, will spill over to Saturday morning. The session will be divided into five phases, with a 30-minute break between the sessions.

After the submission of the evidence, the suspects will then be required to enter their defence.

Ruto, who is listed as the first suspect in the charge sheet, and who has two witnesses for his defence, will call his first witness on Saturday at The Hague, at 2:30pm, local time.

His lawyers will question the witness, during a two-hour session.

The questioning will end on Monday, September 5, paving way for the witness’s one-hour cross-examination by Moreno-Ocampo, in the afternoon.

At 4pm local time on the same day, Ruto will be required to call his second witness, who will also be taken through a similar process.

Kosgey’s lawyers will respond to accusations made against their client by Moreno-Ocampo on Tuesday afternoon, before calling his only witness for questioning.

Sang will be the last to call his two witnesses on Friday September 9, while the second one will be expected at the witness box the following day.

On the same day – September 10 afternoon – after the witnesses finish giving their evidence, Moreno-Ocampo will be called to make the closing statement on his case.

The legal representatives of the victims and the defence teams of the suspects will also be allowed to make closing statements.

The court has, however, reserved extra time on the afternoon of September 12, for any eventuality.