Confirmation of charges hearings conclude in first Kenyan case 12 Sep 2011
Proceedings have concluded in the confirmation of charges hearings for Ruto, Kosgey and Sang before the ICC Pre-Trial Chamber

The confirmation of charges hearings in the first of two cases investigating those responsible for the post-election violence that rocked Kenya in December 2007 took place last week. Former Higher Education Minister William Ruto, Kass FM executive Joshua Arap Sang and former Minister for Industrialisation Henry Kosgey stand accused of planning and organising the violence which left over 1,300 dead and some 300,000 displaced. They are charged with murder, forcible transfer of population and persecution. During the six days of confirmation hearings, Luis Moreno Ocampo, the ICC Chief Prosecutor, was faced with the task of demonstrating to the Pre-Trial Chamber that he possesses enough evidence to warrant a full trial of the three men on charges of crimes against humanity. The Rome Statute provides, per Article 61(5), that “the prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged”.

To do so, the Prosecutor, over the course of the week’s hearings, attempted to establish that the post-election violence was planned, financed and carried out by a joint criminal enterprise, of which Ruto, Kosgey and Sang were members. He stated that the three men had plotted to drive supporters of the Party of National Unity (PNU) from the Rift Valley area, using a ‘network’ which included politicians, members of the media, financiers, local leaders and ex-security force members.

In their defence, lawyers for the three men claimed that the violence was spontaneous and not planned, and no joint criminal enterprise existed, and provided four witnesses to testify to this version of events.  However some of their testimony may do more harm than good, as it establishes a direct connection between Ruto and Sang – the witnesses share a lawyer with Mr Sang.

Mr Ruto's lawyer, David Hooper, accused Moreno-Ocampo of failing to examine exonerating evidence, argued that his client had committed no wrong, and expressed his frustration at the prosecution's reliance on anonymous witnesses.

Mr Sang’s laywer, Katwa Kigen, argued that the prosecution had failed to demonstrate the existence of a command structure and drew the Chamber’s attention to geographical errors in the prosecution’s evidence.

Mr Kosgey, on the other hand, called no witnesses and appears to be taking a different strategy to his co-suspects. He did not deny that an outbreak of violence had occurred, or that a joint criminal enterprise existed, but maintained that he played no role in it.

Ms Sureta Chana, a legal representative for 327 victims, detailed the experience of several of her clients and explaining that all they wanted was for justice to be expeditiously served by the ICC.

The Judges will now take 60 days to deliberate and may choose to confirm all of the charges against the accused as they stand, or to decline some or all of the charges. Should the charges be declined, the prosecution may introduce new evidence and a fresh request for confirmation. If the charges are confirmed, then a Trial Chamber will be formed and the case will proceed to trial.


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