ICC Prosecutor Fatou Bensouda wants the judges to include new elements to make it easier to prove the case against Deputy Prime Minister Uhuru Kenyatta and former Cabinet Secretary Francis Muthaura. In a technical move, Bensouda filed an application on Tuesday that the mode of criminal liability against the Uhuru and Muthaura should be stretched to accept three elements previously not included by the Pre Trial Chamber.
The ICC Prosecutor wants the court to allow her to introduce many avenues by which the court can find them guilty of crimes against humanity. The prosecutor in the Special Court for Sierra Leone found former Liberian leader Charles Taylor guilty of aiding and abetting war crimes after similar adjustments. Bensouda has also asked the trial judges to reduce the elements of "indirect co-perpetration" agreed by the Pre Trial Chamber..
The net effect of the two moves, if agreed to by the judges, will be to increase the possibilities of jailing Uhuru and Muthaura. Ekaterina Trendafilova and her fellow Pre-Trial judges confirmed the charges against them in January under Article 25(3)(a) of the Rome Statute. This attaches a criminal responsibility to a person who commits a crime individually, jointly with another or through another.
Bensouda now wants the judges to stretch this liability to include Article 25(3)(b),(c) and (d). She says that Article 25(3)(a) is not the only way to demonstrate the criminal responsibility of Uhuru and Muthaura. "The prosecution acknowledges that the accuseds' criminal responsibility could equally be characterized as: ordering, soliciting or inducing under Article 25(3)(b); aiding, abetting or otherwise assisting under Article 25(3)(c); or contributing "in any other way" to a crime committed by a "group of persons acting with a common purpose" under Article 25(3)(d)," Bensouda argued.
Former ICC prosecutor Moreno Ocampo had originally only charged them under (a) and (d). In their summons, the judges ignored (d) and the case continued with only (a) in consideration. On Tuesday, Bensouda reminded the trial judges that the pretrial judges had confirmed that Muthaura and Kenyatta "specifically directed the Mungiki to commit the crimes in Nakuru and Naivasha".
The judges also found that Muthaura instructed former Police boss Gen Hussein Ali to remove police obstruction to crimes in Rift Valley and that Uhuru gave "directions" and a "mandate" to an individual "to coordinate the Mungiki for the purposes of the attack in Nakuru." The prosecutor argues that although these acts fell under (a), they could equally be categorized as "ordering, soliciting or inducing " under Article (b).
Bensouda said by an additional element of liability was suggested by the confirmation that Muthaura and Uhuru brokered a deal with Maina Njenga to place Mungiki at their disposal, fund Mungiki activities and offer institutional support. She said these acts can be classified as aiding, abetting or assisting in commission of the crimes and as "any other form of contribution" under Article (d).
Yesterday, Nick Kaufman, a lawyer practicing at the ICC, told the Star that Bensouda's proposals, if granted, would give her more latitude to secure a conviction. "As far the prosecution is concerned, it shows that they are casting their net extremely wide and, to a certain extent, are insecure as to their chances of securing a conviction on the basis of the original selection as to the posited mode of liability," he said.
In the second proposal, Bensouda wants the trial judges to revise the threshold of proving that the two are "indirect co-perpetrators." She said the threshold laid down by the Pre Trial Chamber was "largely correct but requires certain adjustment." Bensouda told the judges that Article 21 (2) of the statute does not bind them to the Pre Trial Chamber's interpretation of Article 25(3) which is at the heart of the test for indirect co-perpetration developed by Trendafilova.
Bensouda wants to rely on the findings of the court that convicted Thomas Lubanga to determine the threshold for conviction. The prosecution is supposed to prove the existence of a common plan but Bensouda has argued that the prosecution is not required to prove that the plan was specifically directed at committing a crime. "It is sufficient to establish that the common plan included "a critical element of criminality", she argued. "Moreover, the common plan need not be explicit and can be inferred from circumstantial evidence, such as the subsequent concerted action of the co-perpetrators," she said.
Bensouda also argued that she need not prove the specific contribution of Uhuru or Muthaura under Article 25(a) if the Lubanga judgment is considered. According to the Lubanga judges, the responsibility of the co-perpetrators arises from mutual attribution based on the joint agreement or common plan. During the status conference on June 12, Muthaura's defence opposed a notice of these changes saying it amounted "to alternative charging by the back door". In her filing, Bensouda insisted that her proposals do not seek to extend the charges against Uhuru and Muthaura.