27 August 2012

Kenya: ICC Prosecutor Updates Charges Against Kenyan PEV Suspects

Photo: © IRIN
Post election violence erupted in Kenya after the poll results that named president Mwai Kibaki as the winner (file photo).

International Criminal Court prosecutor Fatou Bensouda has updated the charges facing the Kenyan suspects accused of masterminding the 2007-08 post-election violence, reducing the crimes some are alleged to have committed.

Bensouda filed updated documents containing charges against Deputy Prime Minister Uhuru Kenyatta, former Head of Public Service Francis Muthaura, Eldoret North MP William Ruto and radio journalist Joshua Sang as directed by the Trial Chamber V on July 5.

The documents exclude charges and facts that the Pre-Trial Chamber judges declined to confirm in their ruling on January 23. The fresh documents also exclude the names of Industrialisation minister Henry Kosgey and former Police Commissioner Hussein Ali whose charges were dropped by the Pre-Trial Chamber. An estimated 1,300 people were killed during the chaos and another 600,000 displaced from their homes.

The charges against Ruto as an 'indirect co-perpetrator in the commission of murder, deportation or forcible transfer of a population and persecution', however, stand. Uhuru and Muthaura have had the crime of 'other forms of sexual violence' dropped. The two will now be charged as indirect co-perpetrators in the commission of five instead of six charges, namely murder, deportation or forcible transfer, rape, persecution and other inhumane acts.

Sang will now face charges of only contributing to the commission of murder, deportation or forcible transfer of a population and persecution. Pre-Trial Chamber II had found that there were no substantial grounds to believe that Sang was an indirect co-perpetrator of the crimes. The trial chamber had on July 5 instructed the prosecution to file the updated documents to enable the defence prepare for the trials that kick off in April 2013.

"The document should not include any facts explicitly rejected by the Pre-Trial Chamber in the confirmation decision," trial judges Kuniko Ozaki, Christine Van den Wyngaert and Chile Eboe-Osuji, had directed. The Trial Chamber, however, wanted the updated document containing charges to contain references to the relevant paragraphs of the confirmation decision.

But Ruto and Sang have disagreed with the prosecution with regard to the inclusion in of "any factual assertions which are closely connected to the charges and which the PTC (Pre-Trial Chamber) did not affirmatively state had been sufficiently substantiated in the confirmation decision". In addition, the two have opposed the formulation of the charges while at the same time asking that the commanders that the prosecution refers to in the document be named.

Uhuru and Ruto had earlier challenged an attempt by Bensouda to alter facts in their cases to increase their mode of criminal responsibility contributing, ordering, soliciting or inducing crimes committed during the post-election violence. This specific request by the prosecutor has however not been decided upon by the Trial chamber.

In the meantime, the Civil Society Network that brings together civil society groups and NGOs in Kenya has sought leave to participate, as amicus curiae (friends of the court), to participate at the trial of the four PEV suspects on behalf of victims. The victims, the CSO says, includes 11 who have applied but who have yet to be accepted and others who are yet to apply but are interested in doing so.

The network has submitted the list of victims they are representing on confidential and on an ex parte basis, in order to protect the identities of the victims that the CSO Network has been in contact with through lawyer Martha Ndukuyu. "The victims have specifically requested that their identities not be disclosed to the public or to the parties and participants in the two Kenya cases," the August 24 application states.

In firming up its case, the Network states that it has been working with the PEV victims since 2008, including informing them of their right to participate as victims before the ICC. "Since 2008, the CSO Network has actively worked with victims in a number of initiatives, including assisting their participation in the Commission of Inquiry into the Post-Election Violence ('CIPEV or the Waki Commission') and the Truth, Justice and Reconciliation Commission ('TJRC') amongst others."

The CSO is basing its application on Rule 103(1) of the ICC Rules that states that "At any stage of the proceedings, a Chamber may, if it considers it desirable for the proper determination of the case, invite, or grant leave to a State, organization or person to submit, in writing or orally, any observation on any issue that the Chamber deems appropriate." The trials in both cases commence on April 10 and 11, 2013 respectively at The Hague.

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