By MAKAU MUTUA
Posted Saturday, October 29 2011 at 12:32
Posted Saturday, October 29 2011 at 12:32
I am aware that some of the Ocampo Six – and their lawyers – have already put champagne on ice. They are ready to uncork it in a celebratory delirium.
They believe that they made minced meat of ICC Prosecutor Luis Moreno-Ocampo. They predict that the ICC Pre-Trial Chamber won’t confirm the charges against them. I wouldn’t be so sure.
That’s why I caution against premature fist-pumping and high-fiving. This thing ain’t over till the fat lady sings. Those who are writing Mr Moreno-Ocampo’s obituary should cool their heels.
Courtroom theatrics and speechifying don’t determine the legal outcome of cases. I have four reasons why I believe charges against the Ocampo Six will be confirmed. It’s not even close.
First, the confirmation of charges hearings is not a trial. It’s a “mere speed bump” erected by the ICC Statute to make sure that a frivolous case doesn’t go to trial.
It gives both the court and the prosecutor an opportunity to re-examine their original decision to “summon” the Ocampo Six for allegations of crimes against humanity.
The court wants to assure itself that, according to Article 61(7) of the Statute, there are “substantial grounds to believe that the person committed” the crime for which he is charged.
No one should be bound for trial for such heinous offences without a likelihood of conviction. You should note that the earlier decision to “summon” the suspects is much weightier than the confirmation hearings.
The initial decision to “summon” suspects is never taken lightly by the court.
According to Article 58(1) of the Statute, the prosecutor must convince the judges at that stage that there are “reasonable grounds” to believe that the person committed the crimes.
On March 8 this year, the court agreed with the prosecutor that there were “reasonable grounds” to summon the Ocampo Six to The Hague. The judges so ruled after examining the evidence provided by the prosecutor.
That’s why new exculpatory evidence would have to be presented at the confirmation stage to throw Mr Moreno-Ocampo’s case against the Ocampo Six out.
I didn’t hear anything from the Ocampo Six that would’ve convinced the judges of their innocence.
Confirmation of charges
Second, the confirmation of charges hearings is not a “political” proceeding. It’s a strictly “legal” forum where only the evidence – and the evidence alone – matters.
The purpose of the hearing is to establish whether “substantial grounds” exist to bind the suspect to trial.
This “legal standard” is solely evidentiary. Judges must weigh based on the evidence whether they believe that the suspect has a case to answer.
A suspect, such as Finance minister Uhuru Kenyatta, cannot legally deflect the charges against him by pinning what he called “political responsibility” for the mayhem on PM Raila Odinga.
That’s political theatre and has no bearing on the charges against Mr Kenyatta. The court is interested in “criminal” and not “political” responsibility.
Third, performance by a witness or suspect in the court may be entertaining – and even comforting to the suspect and his supporters – but it doesn’t buy coffee for the judges.
I only raise this issue because much has been made of Mr Kenyatta’s “smooth” delivery under fire from Mr Moreno-Ocampo. Some commentators have even said that Mr Moreno-Ocampo was outclassed by Mr Kenyatta.
Others felt Mr Moreno-Ocampo flopped, and looked like a lion in winter. This is the wrong diagnosis by laymen. Mr Kenyatta was playing to two audiences – the judges and the voters back in Kenya.
Mr Moreno-Ocampo had only one simple goal and audience – to show the judges Mr Kenyatta had a case to answer.
Fourth, as a legal matter, the confirmation hearings proved one thing – that something went terribly wrong in Kenya.
That over one thousand people were massacred and thousands more injured, pillaged, and rendered homeless. The prosecutor has adduced evidence that he claims links the Ocampo Six to the mayhem.
The Ocampo Six vehemently deny the allegations. Where does this leave the court? My belief is that having heard the side of the Ocampo Six, it is now eager to have the two sides argue their cases in a full-blown trial. Nothing happened at the confirmation hearings to prove the innocence of any of the Ocampo Six.
They raised interesting questions, but didn’t absolve themselves. Only a full trial can. I know why the Ocampo Six and their defences were more spirited than Mr Moreno-Ocampo and his lawyers.
The two sides had different burdens to overcome. The defence went for broke because they thought there was nothing to lose.
This is a mistake because some of the suspects, in particular Mr Kenyatta and his witnesses, may have “talked too much”.
I think they may have made statements that could come back to bite them in the trial if the charges are confirmed.
But Mr Kenyatta must have thought it’s better to nip the whole thing in the bud. That’s why he came out all guns blazing.
In contrast, Mr Moreno-Ocampo had light lifting. That’s why he didn’t panic.
Finally, I am rooting for a full trial because I want to see all the evidence laid bare. It’s an open secret that Mr Moreno-Ocampo has only exposed a sliver of the evidence he’s got against the Ocampo Six.
Only a full trial will expose the ugly guts of what happened after the 2007 elections.
This is why I believe that the court won’t deny itself – and Kenyans – the chance to lay bare the naked truth – who planned, organised, funded and executed the bloody mayhem.
Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC.
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