The Star (Nairobi)

Kenya: Ocampo Suspects in Final Plea to ICC Judges

THREE post-election violence suspects in the first case at the ICC yesterday submitted their final pleas to the court not to confirm charges against them. They also left the matter in the hands of judges who must now decide whether to commit them to full trial or not. In their separate filings delivered by their lawyers, William Ruto, Henry Kosgey and Joshua arap Sang reiterated that the evidence being relied upon to commit them to trial is insufficient and not credible.

The submissions also emphasized that the witnesses used by the prosecution are not credible, that the prosecution failed to gather enough evidence, and that the prosecution failed to investigate exculpatory evidence. "The Prosecution's case relies principally on four anonymous witnesses. There is no independent evidence to verify the accuracy and truthfulness of their accounts of preparatory meetings or inciting statements, nor their integrity," lawyer Katwa Kigen said of Ruto's case.

Kigen said only what was presented at the confirmation of charges hearing is available to the prosecution, because no prudent and reasonable prosecutor can withhold his best evidence and risk non-confirmation. He said "the best evidence" that the prosecution availed was the one gathered from untruthful witnesses, human rights bodies and other organisations. He said the prosecution was used as a conduit to convey materials to the court. "The Defence submits that the OTP failed to carry out professional, impartial and open-minded investigations to establish the truth," Kigen said.

Kosgey, through lawyer George Oraro, said the prosecution has failed to reach the court's standards in collecting evidence. He said the prosecution relied on the testimony of one witness whose evidence is incoherent, inconsistent and contradictory. Oraro said his client was constrained in offering a proper alibi because the prosecution deducted certain dates of alleged meetings, only for the prosecution to release them after the alibi had been offered. "It is axiomatic that the defence of alibi can only be raised if the prosecution has provided the time and place where the crime is alleged to have occurred," Oraro said.

Moreover, Oraro avers in his final submission, use of anonymous witnesses and redacted witness statements constrained Kosgey's ability to challenge that evidence as it may be that, that part of the omitted evidence would have availed the him opportunity to successfully challenge the evidence. He said evidence which is inconsistent and contradictory against other evidence cannot form a sufficient basis upon which it can be established that there are sufficient grounds to believe that a person has committed the crimes.

Oraro gave a summary of three points which he said disqualify Kosgey's case; the first is reliance on one anonymous witness, the second low probative value for such evidence "because of the way it has been presented", and the third lack of meaningful corroborative evidence. The fourth and final ground on which Kosgey hopes to disqualify his case at this point is that there are material inconsistencies between the evidence of the key witness and other aspects of the prosecution's own case.

Sang's final submissions largely conform with Ruto's submission in insisting that witnesses employed against him are not credible, failure by the prosecution to produce both incriminating and exculpatory evidence, and over reliance on secondary evidence from NGO's. "Strikingly, the Prosecution has not produced any incriminating broadcasts made by Sang or others, though the prosecution alleges that Sang (and others he allowed on air during his show Lene Emet) made inciting remarks," Sang, through Kigen, said.

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