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.”