ICC: Four suspects rush to file appeal

By Cyrus Ombati

Monday offers the four high-profiled Kenyans committed to full trial at The Hague the last chance for appeal and they are doing everything to make it count.

DPM Uhuru Kenyatta and Eldoret North MP William Ruto during prayers for the Ocampo Four at the Ruiru stadium on Sunday. They are among four Kenyans whose cases were confirmed by ICC. [Photo: Evans Habil/Standard]

There is every indication they will all have appealed the confirmation of crimes against humanity charges by end of Monday. Deputy Prime Minister Uhuru Kenyatta confirmed his lawyers had appealed against the decision made by the three ICC judges Monday last week.

"I have appealed against the ruling of the Pre-Trial Chamber II and I will therefore not comment on the decision by the ICC to confirm the charges against me now," Uhuru told a rally in Ruiru on Saturday.

But it was not clear whether his legal team had deposited the legal documents with the International Criminal Court (ICC) by then, or his was merely a statement of intent.

Sources indicated that lawyers for Mr Francis Muthaura, who stepped down as Head of Civil Service and Secretary to the Cabinet last week to face ICC trial, worked round the clock over the weekend to beat Mondayy’s deadline.

Those representing Eldoret North MP William Ruto and Kass FM head of operations, Mr Joshua Arap Sang are already at The Hague to file their appeals.

A source familiar with Sang’s defence, and who can’t be quoted because he is not cleared to speak on behalf of the accused journalist, said the appeal bundle for Ruto and Sang would be handed in on Monday.

Professionalism

Sang’s lawyer, Mr Kimutai Bosek, declined to discuss the issue because of professional considerations.

On the other hand, efforts to reach Ruto’s lawyer, Mr Katwa Kigen failed, because his mobile phone was hooked to an automatic answering machine whose response to those calling was in the Dutch language, a sign he should be at The Hague already.

Last Tuesday, ICC Prosecutor Luis Moreno-Ocampo said he respects the rights of the four to appeal, although it would delay the trial process.

"The appeal process will delay trial, some people will be disappointed but we respect their right to appeal," the prosecutor said.

He also allayed fears that the accused may be detained saying as long as they complied with the judges’ conditions, which includes not interfering with witnesses and inciting violence, they would enjoy their liberties.

Conclusion

"The judges confirmed the conditions and suspects would be free even during the trial," he said.

On the question of how long it would take for the cases to conclude, Moreno-Ocampo gave an estimate of one and a half years on the minimum, based on the period taken by similar cases already concluded at by ICC.

The ICC decision was made on Monday through a majority vote of two judges out of three.

Presiding Judge Ekaterina Trendafilova and Cuno Tarfusser confirmed the cases against the four suspects, but Peter Hans Kaul argued that although serious crimes were committed, they failed to meet the threshold of ‘organisation’ as defined by the Rome Statue.

Moreno-Ocampo blamed the violence in Kenya on the four accused claiming they operated under ‘Kalenjin Network’ and proscribed Mungiki sect.

Legal experts argue the court’s confirmation decision is not automatically appealable under Article 81, because only final sentences are vested with an appeal in ordinary circumstances.

Muthaura and his lawyers had been meeting since the ruling was read to strategise on how he would appeal. The meetings started on Monday evening when the lead counsel, Mr Karim Khan arrived in the country. Mr Kennedy Ogeto and Mr Essa Faal and other local researchers who had been working on the paperwork throughout the week joined him.

An official close to the team said a special office had been set up for the lawyers to use when drafting the appeal. Muthaura, Ruto, Uhuru and Sang had all declared they would appeal when the judgment was read.

Khan had on Monday expressed his intention to lodge an appeal following the ruling, and vowed to continue fighting for Muthaura even if the appeal was thrown out.

Football match

He said that like in a football match, it was half-time and they intend to fight to the end.

"Those who believe in justice should wait for the truth will come out soon. It is all a concoction of lies and the verdict will come out soon that he is an innocent man," he said.

He said the ICC process on Kenya has polarised the country, stressing a lot of rebuilding is taking place at the same time, which should be left to continue.

Khan insisted it is upon the prosecution to prove their case and promised a battle in the days to come. Ruto met with his lawyers on Monday at his Karen home, and later announced that he was considering appealing the ruling.

Sang, who was accompanied by a large group of pro-Ruto MPs at the same meeting, also said he would appeal.

On Sunday, Mr Alexander Eichener, a jurist who specialises in administrative and constitutional law, with a penchant for international criminal law, argued that an appeal against confirmation of charges would have to be directed to the same chamber that gave the ruling.

"Unlike the appeal against a final sentence, which is automatically suspensive (Article 81 of the Rome Statute), applying appeal against another decision would have no suspensive effect according to Article 82 paragraph three; reason: there is no arrest warrant, nor any sequester of properties involved.

"So any stay of proceedings would have to be specifically requested and ordered, which order will not be given here," he said.

Eichener said the Rules of Procedure and Evidence that regulate the appeal procedure stipulate that only a limited handful of other issues are appealable without leave of the court, and the appeal being sought falls outside this bracket.

"An appeal against a confirmation or non-confirmation decision of the Pre-Trial Chamber would therefore need the same court to grant leave of appeal firstly. And this decision (the granting or declining of the leave to appeal) is made by the Pre-trial Chamber, not by the Appeals Chamber,’’ he argued.