The dissent of Judge Kaul: a challenge for the prosecution’s evidence?

In the decision of the International Criminal Court (ICC) judges issuing the summons to appear for the six suspects, two of the judges were in favor, and one was against, which is known as a “dissent.” Although the dissent has no bearing on the validity of the decision of the judges, it is an indication of what could be used by the defense in their arguments against the prosecution evidence.

The dissent of Judge Hans-Peter Kaul argues that the persons allegedly implementing the post-election violence did not constitute an organization according to the legal definitions. Crimes against humanity can only be classified as such if they are committed through a “State or organizational policy” to attack a civilian population. If there is not sufficient evidence that this occurred, the ICC does not have jurisdiction and cannot proceed with the case.

For the allegations against William Samoei Ruto, Henry Kiprono Kosgey, and Joseph Arap Sang, the prosecutor argues that there was a “network” of Orange Democratic Movement (ODM) affiliated structures that were utilized to plan and organize attacks against Kenyan civilians. Judge Kaul found that there is currently insufficient evidence to show that the ODM structure itself was used to organize the attacks and that there was insufficient evidence to support the prosecutors allegations that there was a “network” with political, medial, financial, tribal, and military branches. Also, according to Judge Kaul, it is significant that the “network” was of a temporary nature, which only emerged in connection with the alleged crimes.

For the allegations against Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali, the prosecutor argues that the alleged perpetrators organized to attack Kenyan civilians through the Mungiki organization and the Kenyan Police. Judge Kaul found that there is currently insufficient evidence to show that the Mungiki and the Kenyan Police existed as a united organization. He found there was not enough evidence to show there was a common hierarchy between the Mungiki and the Kenyan Police and that there was not sufficient evidence what the law requires to prove an “organization.” According to Judge Kaul, an “organization” requires a degree of territorial control that is more substantial than what the evidence shows was the case for the Mungiki, which Judge Kaul found to be restricted to parts of Nairobi. He therefore doubts that the Mungiki therefore had “the capacity and means at its disposal to attack any civilian population on a large scale”.

This dissent reflects the findings of only one of three judges at the current stage of the ICC process. It is not therefore conclusive of the key evidentiary concerns. The investigation is not yet complete and it is possible for the prosecutor to secure further evidence. However, it is an important clue to some of the evidentiary challenges that could come up in the future.

It is notable that Judge Kaul began his dissent by stating: “I understand and sympathize with the hopes and expectations of the victims of the crimes…I am aware of the victims’ expectations that those responsible for these crimes should be brought to justice…I have no doubt that the crimes alleged… fall within the competence of the criminal justice authorities of the Republic of Kenya as a matter to be investigated and prosecuted under Kenyan criminal law.”


  1. Judge Kaul may be right in his perception of the Kenyan cases not meeting the threshhold for trial at the ICC, but as much as the judge is entitled to his opinion, can he please proceed to tell us why he was present in the court while the charges preferred to the suspects were read to them? As we wait for the judge to say something, if at all he will give ear to the plea, I see the pre-trial chamber judges leaning toward Judge Kaul’s perception, a sympton that started showing up during the reading of the charges to the suspects and which is subsequently mushrooming, that is, the pre-trial chamber judges order to the prosecutor to disclose any evidence he has against the suspects to enable them prepare their defence. I wish to ask, is this procedure the ICC adopts for all cases brought before it like those of Slobodan,Taylor, Bemba, Lubanga, Chui? Can one of the ICC judges who has untainted mind tell us please? Why can’t the court commit the O’six to trial and allow the prosecutor to give the evidence he has against the suspects in court and their lawyers who are so qualified to defend them from then on? Even if the majority of us commonn people have no knowledge or little knowledge of law, our conscience tells us that it is not right for the prosecutor to disclose his evedince as ordered by the pre-trial chamber judges and he should only do this during court proceedings. Why should the Kenyan cases be treated diffrently from others? Stop this game thou ICC judges! Are you afraid to try these fellows because of the big useless noise they are making back in Kenya?


  2. May the ICC judges not force the prosecutor to disclose his evidence before the trials start. Let the suspects and their lawyers get the evidence as the trials go on in court and prepare their defence. If the pre-trial judgres insist the prosecutor has to disclose his evidence as per their order, the prosecutor who I see as being forced to strip himself naked before the suspects should not agree to this if the court has not dealt similarly with cases brought before it in the past. These Kenyan cases are not special so that they are afforded special treatment by the ICC. If the ICC is afraid of handling the cases in the rght way let them say so and allow these fellows to go scot free as no court in Kenya will indict them.


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