Former journalist Joshua arap Sang could not have incited violence or helped coordinate attacks using his radio show as the prosecution has alleged because of a ban on live broadcasts imposed by the Kenyan government, Sang's lawyer told the International Criminal Court (ICC) on 13 January.
Joseph Kipchumba Kigen-Katwa told Trial Chamber V(a) on Wednesday that the government ordered the ban on live broadcasts on 30 December 2007, soon after the presidential results were declared and just as violence was erupting in the country.
Kigen-Katwa said that the station Sang worked for, Kass FM, then stopped airing any of its regular programming out of an abundance of caution. He explained that the ban was only on live broadcasts, but the station's management took the decision not to air its regular programming because the government had shut down the station in 2005.
Sang recorded peace messages
Kass FM only broadcast music and pre-recorded peace messages, and so it was impossible for Sang to have incited violence or helped coordinate attacks on radio, Kigen-Katwa told the Court. He said that Sang recorded some of the peace messages that Kass FM broadcast during the post-election violence period.
Sang's lead lawyer highlighted the ban on live broadcasts to show why his client is innocent and he had no case to answer before Trial Chamber V(a). Kigen-Katwa was making submissions on the second day of hearings called by the chamber to listen to arguments on why the prosecution's case should be dismissed and the accused acquitted.
The alleged network
Sang is facing three counts of crimes against humanity for his alleged role in the violence that followed the December 2007 elections. His co-accused is Deputy President William Samoei Ruto, who also faces three counts of crimes against humanity. According to the prosecution's case, both of them belonged to what the prosecution has characterised as a network that planned, financed and coordinated attacks in the districts of Uasin Gishu and Nandi in the Rift Valley region.
Kigen-Katwa said that it was Sang's defence that the network did not exist and the prosecution had not presented direct evidence to show how the network came to be or decided its policy. He also pointed out that the prosecution conceded that it had been unable to present such direct evidence when senior trial lawyer Anton Steynberg made his submission on Tuesday.
"I will say on my part that as far as I am concerned if you do not find a network and you are an international court then you do not have jurisdiction in this case," Kigen-Katwa said.
Kigen-Katwa said that much of the prosecution's evidence against Sang came from witness statements that Trial Chamber V(a) admitted as evidence in a majority decision made last August under Rule 68 of the ICC's Rules of Procedure and Evidence. He asked the judges to give less weight to the statements admitted under Rule 68 and more weight to witness testimony that was tested in court.
Caroline Buisman, another lawyer representing Sang, observed that most of the allegations against her client were not contained in the Updated Document Containing the Charges. This is the document that has the charges against Sang as confirmed by Pre-Trial Chamber II in a majority decision issued in January 2012.
Buisman argued that the chamber should only consider evidence that is relevant to the allegations contained in the indictment against Sang when they decide whether Sang should present his defence. She also said that if the judges decided to dismiss their application for Sang's acquittal, then they should also dismiss any allegations the prosecution has presented that are not in Updated Document Containing the Charges.
An answer expected on Friday
Presiding Judge Chile Eboe-Osuji asked Kigen-Katwa early in his submissions whether the Sang defence was considering letting their "no case to answer" motion stand, irrespective of how the chamber decided the matter. Kigen-Katwa said this was under consideration and they would let the chamber know on Friday what they decided.
On Tuesday, Eboe-Osuji had raised the issue of the practice in other jurisdictions where "no case to answer" motions were regularly filed. He observed that in some jurisdictions it was mandatory and in others it was a matter of choice for defence counsel who file "no case to answer" motions to stand by those applications and not present a defence, irrespective of the decisions judges reached. The presiding judge asked the defence teams in this case to consider whether this is something they wanted to do but the chamber was not requiring them to do so.
Ruto's lead lawyer, Karim Khan, will make his submissions on Thursday.
This report comes from the ICC Kenya Monitor, a project of the Open Society Justice Initiative, which offers monitoring and commentary on the ICC's proceedings arising from the post-election violence that erupted in Kenya in 2007-2008.