ICC: Hague ruling opens new chapter

By STANDARD REPORTER

The International Criminal Court ruling hit the Kenyan political arena like a tsunami off the waters of Indian Ocean. It committed to full trial two Presidential candidates, raised questions about integrity and added fire to the raging debate on whether they should be allowed to run.

The Hague ruling hits political arena like a typhoon. Kosgey, Ali off the hook for now. Ruto, Uhuru cases confirmed. Then on Tuesday Kenyans will hear from Ocampo [Graphics/Standard]

It got President Kibaki — who now faces pressure to force the faces of government in the ICC list to step aside until the appeal or trial process is completed — and Vice-President Kalonzo Musyoka talking. But they were not alone in speaking guardedly of their indignation.

The court emphasised that the four accused, despite having moved from the category of suspects after yesterday’s ruling, remain innocent until the second phase of hearings is completed. The burden of proving them guilty lies on the Prosecutor, who is leaving office in June, and his successor.

The country now awaits the news conference this afternoon by Luis Moreno-Ocampo, who is expected to respond to the ruling, which he had predicted, announce whether he will appeal against the dismissal of charges against Kosgey and Ali, and take the opportunity given him by the court to present fresh evidence against them.

And like the real tsunami, Kenya will continue to sway in its strong winds for a long time. It also opened the door to the next phase, which is full trial for crimes against humanity for four high-profiled Kenyans: Mr Uhuru Kenyatta, Mr William Ruto, Mr Francis Muthaura and Mr Joshua Arap Sang.

The four will now be tried by an entirely new chamber, or even two, but first a decision will have to be made on the whatever appeals they may file against yesterday’s ruling.

In the first case involving Ruto, Sang and Kosgey the court ruled: "As to the criminal responsibility of Mr Ruto and Mr Sang, the Chamber found, on the basis of the evidence presented, that they are responsible for the charges levied against them."

Specifically on Kosgey, it determined: "The Chamber found that the Prosecutor’s evidence failed to satisfy the evidentiary threshold required. The Chamber was not persuaded by the evidence presented by the Prosecutor of Mr Kosgey’s alleged role within the organisation."

On the second case bringing together Uhuru, Muthaura and Ali it decided: "With respect to the criminal responsibility of Mr Muthaura and Mr Kenyatta, the Chamber was satisfied that the evidence also established substantial grounds to believe that they are criminally responsible for the alleged crimes, as indirect co-perpetrators, pursuant to article 25(3)(a) of the Rome Statute, having gained control over the Mungiki and directed them to commit the crimes."

While letting off Maj Gen (Rtd) Hussein Ali, it ruled: "The Chamber found that the evidence presented does not provide substantial grounds to believe that the Kenya Police participated in the attack in or around Nakuru and Naivasha. Since Mr Ali was charged with contributing to the crimes through the Kenya Police, the Chamber declined to confirm the charges against him."

Closest confidants

The ruling struck at the heart of President Kibaki’s administration, hooking on its end his Deputy Prime Minister and Finance Minister, who is also his perceived, preferred successor, and the man who reports to him directly in his capacity as Head of Civil Service and Secretary to the Cabinet.

Technically, in government operations, Muthaura is the President’s ‘enforcer’ and meets and talks with him daily.

It also opened a new page in Kenya’s history where the story of a retiring President leaving behind two of his closest confidants facing ICC trials, the first involving Kenyans, will be written and archived. Indeed, the President himself had given a personal statement to the court in support of Muthaura.

The President ordered the Attorney General to form a team to advise his Government on how respond to the ICC ruling. He also renewed orders for the completion of resettlement of Internally Displaced Persons (IDPs) who have been in the camps since the skirmishes spurred by the controversial declaration by the defunct Electoral Commission of Kenya that he won the ill-fated 2007 presidential election.

Appeal against dismissal

But the Pre-Trial Chamber II said it found no evidence to commit to trial Mr Henry Kosgey and Ali, but still left a window open for outgoing Prosecutor Luis Moreno-Ocampo, who led the investigations, to appeal against the dismissal of the charges he drew against them.

It also left Kenyans wondering if the ruling was not decided on the basis of outspokenness and open criticism of the ICC process, because Kosgey and Ali hardly spoke openly about what they thought of ICC, and limited their defence and misgivings about Moreno-Ocampo’s investigations to the courtroom.

Like in the ruling last year on jurisdiction of ICC cases, German-born judge Hans-Peter Kaul dissented with the ruling, but it sailed through on the basis of majority vote because presiding judge Ekaterina Trendafilova from Bulgaria and Cuno Tarfusser of Italy were of the contrary opinion.

"He maintains that ICC is not competent because the crimes committed on the territory of the

Republic of Kenya during the post-election violence of 2007-2008 in his view were serious common crimes under Kenyan criminal law, but not crimes against humanity as codified in Article 7 of the Rome Statute,’’ explained Trendafilova during the presentation of oral summary of the ruling at The Hague.

Together, the six "Defence teams and the Prosecutor in both cases disclosed approximately 30,000 pages of evidence, for the purpose of the Chambers’ determination on the charges presented,’’ she added.

Ali was guarded in his reaction, saying it was too early to celebrate and opting to watch the prosecutor’s next step. Ruto indicated he would appeal the decision and declared it would not derail his political ambitions.

 

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