DEPUTY Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto have opposed an application by ICC Chief Prosecutor Fatou Bensouda to increase the charges against them.
At the same time Bensouda has dispatched a top official to Nairobi to confirm government's cooperation on the trial of four Kenyans at the ICC in April 2013.
Phakiso Mochochoko, the head of the jurisdiction, complementarity and cooperation division in the Prosecutor's office, is expected to hold a press conference today before holding talks with government and civil society. Mochochoko last came to Kenya in May 2011 before the the confirmation of charges hearings. Deputy Prime Minister Uhuru Kenyatta, former Cabinet Secretary Francis Muthaura, Eldoret North MP William Ruto and radio journalist Joshua arap Sang are due to be tried for crimes against humanity arising out of the 2007/08 post election violence.
This week, Mochochoko is expected to raise the concerns of the ICC on the alleged intimidation of suspected witnesses or people helping the ICC. Two weeks ago the ICC refused to release statements and evidence for the Kenyan cases to defence lawyers. While denying Kenyan the request for the prosecution materials earlier this month, the ICC judges alluded to the prevailing threats to witnesses and leaking of confidential information related to ICC witnesses saying government cannot yet be trusted with confidential prosecution materials.
The judges were particularly concerned about the protection of witnesses. In separate applications yesterday, Uhuru and Ruto asked the trial judges to dismiss an application filed earlier in the month by Bensouda. Bensouda wanted to stretch their individual criminal responsibility to include three fresh elements.
In the confirmation decision in January, the two were charged with one element of criminal liability- Article 25(3)(a) of the Rome Statute. But now, Bensouda wants to include Article 25(3)(b),(c) and (d). "The requirement of further evidence to establish further modes of liability has not been met by the Prosecution and the submission on this issue does not apply and should be rejected," said Uhuru's lawyers Steven Kay and Gillian Higgins.
Uhuru said the charges were confirmed on him "only" under Article 25(3)(a) and this cannot be changed unless it is supported by new evidence. He said the evidence before the Trial Chamber is the same evidence that was before the Pre-Trial Chamber. Ruto's lawyer David Hooper argued that the notice was too vague. "The fairness of the trial depends on the accused being able to investigate in advance of the trial, and confront during the trial, the charges against him in a manner which does not leave scope for surprise or the moulding of the case by the prosecution as the evidence unfolds," said Hooper.
Article 25(3)(a) attaches a criminal responsibility to a person who commits a crime individually, jointly with another or through another. Bensouda wants them also be charged for ordering, soliciting or inducing under Article 25(3)(b); aiding, abetting or otherwise assisting under Article 25(3)(c); and contributing "in any other way" to a crime committed by a "group of persons acting with a common purpose" under Article 25(3)(d). The prosecutor 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 adjustments."
For instance, where the prosecution was supposed to prove the existence of a common plan, Bensouda said she need not prove that the plan was specifically directed at committing a crime. She argued that it would be sufficient to establish that the common plan included "a critical element of criminality". "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.
Both Ruto and Uhuru opposed Bensouda's request saying it would make it easier for the prosecution to convict them. Uhuru's lawyer also argued that it was an incorrect interpretation of the law and the prosecution is aiming to remove critical elements of criminal intent. Ruto's lawyer said Bensouda wanted to water down the law so that an individual could be held liable for the behaviour of persons over whom he has no control.