5 October 2011

Kenya: Hague Judges' Message to All Kenyans

Photo: Lawrence Maingi/The Nation
Deputy PM Uhuru Kenyatta greets Kenyans in The Hague.

The Hague — Top government officials identified by prosecutors at the International Criminal Court as bearing the greatest responsibility for the post-election violence will know whether they will face trial by January 16.

Presiding judge Ekaterina Trendafilova disclosed a post-hearings timetable that requires defence lawyers to submit their final written submissions on November 16.

The law binds the judges to deliver a decision two months after that date, which means Kenyans will know the outcome of one of the most watched court cases in the nation's post-independence history in the third week of January at the latest.

Judge Trendafilova used the final statement of the hearings in Pre-Trial Chamber II to repeat a warning to the suspects that they should not engage in any activities that could trigger a return to violence.

She also took the unusual step of passing a message directly to the nation, which has been transfixed by the hearings.

At the end of a marathon session at 2.37pm, Ms Trendafilova turned to the cameras above the public gallery in a crowded courtroom and urged Kenyans to avoid threatening witnesses and to put their trust in the integrity of the ICC process.

"I want to assure the citizens of Kenya that the judges of this chamber... Judge Hans Kaul, Judge Cuno Tarfusser and myself, Ekaterina Trendafilova, will take our decision independently and impartially and only after having carefully examined all pieces of evidence presented by both parties so that justice will be served to everyone concerned."

Finance minister Uhuru Kenyatta, Public Service chief Francis Muthaura and Postmaster-General Hussein Ali face charges of crimes against humanity for what chief prosecutor Luis Moreno-Ocampo says was their role in inciting and funding the violence that swept the country following the disputed presidential elections.

MPs William Ruto and Henry Kosgey and radio journalist Joshua arap Sang faced confirmation of charges hearings in a separate case.

Mr Kenyatta and Mr Muthaura expressed confidence that they would be cleared in brief comments after yesterday's session.

"We were given an opportunity to give our side of the story and it's up to the judges to decide," Mr Kenyatta said. "It's time for us to get out of the cold and go back home."

Lawyers on both sides used their final 40-minute submissions to present starkly contrasting versions of the events that took place in Naivasha and Nakuru in the last week of January 2008.

The lead prosecution counsel, Ms Adesola Adeboyejo, and victims' lawyer Morris Anyah said they had done enough to persuade the court to send the case to trial.

Ms Adeboyejo said they had assembled a "credible and compelling" case that showed Mr Kenyatta and Mr Muthaura came up with a common plan to retain power by any means necessary following the elections.

"Today we have learnt that Mr Kenyatta is referred to as the Boss by two Mungiki witnesses," she said.

She said Mr Ali facilitated that plan through inaction.

"The evidence presented by the prosecution is corroborated by many sources and also by admissions of the defence," she said. "The confirmation hearings have clearly demonstrated that there are substantial grounds to believe that the three suspects are criminally responsible for the crimes and that these three suspects should go to trial."

Mr Muthaura's lawyer, Mr Karim Khan, whose rhetorical flourishes have been a notable part of the proceedings, described the prosecution's case as weak and dependent on the testimony of unreliable witnesses.

"To confirm this case, fair will have to become foul and foul will have become fair," he said, adding: "Whichever way you look at the evidence, even if you dress up the evidence in its Sunday best, it is still in rags. It does not meet the standard of cogency and clarity that will satisfy the court to take this case forward."

The decision of the chamber will be eagerly anticipated by the victims, the suspects and ordinary Kenyans anxious over what a ruling either way will mean as the nation enters its first election year since the violence.

The decision will determine the political future of Mr Kenyatta and Mr Ruto while also serving as a key test of the most advanced effort to hold high-profile figures to account for the cyclical bouts of violence that have been a feature of Kenyan elections since 1992.

One of the key battlegrounds in the closing submissions was the issue of the credibility of the witnesses the prosecution is relying on.

The defence of Mr Kenyatta says that two witnesses, cited in court only as prosecution witness 11 and 12 to protect their identity, attempted to extort money from Mr Kenyatta to offer exonerating evidence against him.

They say the pair later switched sides to join the prosecution.

Question the credibility

Ms Adeboyejo sought to fight back against those claims, saying the prosecution had lined up many more witnesses and it was premature to call into question the credibility of those two witnesses and another, witness four, who is said to have offered contradictory versions of events to the Waki commission and to Mr Moreno-Ocampo's team.

"The credibility of witnesses cannot be assessed when they have not even been heard," Ms Adeboyejo said. "That is what the trial is for."

Mr Kenyatta's lawyer, Mr Steven Kay, took the opposite view.

"The prosecution witnesses are criminals. They are untrustworthy. Their perspective of life is not the same as that of the men and women in the courtroom. The tricks they have tried in proceedings of the ICC are the sort of tricks they would play on the streets with matatu owners."

Maj-Gen Ali's lawyer Gregory Kehoe, whose client faces the lesser charge of being a co-perpetrator of the crimes, urged the judges to dismiss the prosecutor's case.

He said Mr Moreno-Ocampo's team had relied on the evidence of witnesses that could not be trusted.

In the end, it fell to the victim's lawyer Mr Anyah to remind the court that some of the keenest observers of the proceedings were the hundreds of thousands of victims whose lives were disrupted by the fighting.

He said some of the victims had expressed unhappiness with President Kibaki's decision to send a statement on behalf of Mr Muthaura.

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