When the International Criminal Court’s prosecutor released the details of his case against three prominent Kenyans, he did little to assuage a public thirst in Kenya for clarity about what the case is against William Samoei Ruto, Henry Kiprono Kosgey, and Joshua arap Sang. On the surface of things, in fact, Luis Moreno-Ocampo and his team seem to have done the opposite. That is raise further questions about what exactly the case is against Ruto, Kosgey, and Sang.
On Monday, the Office of the Prosecutor released a 39 page submission as part of its disclosure ahead of September’s confirmation of charges hearings. It can be easily read to offer no new information when compared with the 79 page document Ocampo submitted to the Pre-Trial Chamber in December 2010 when asking for summons to be issued for the three men, even when taking into consideration the heavy redactions in the December document. However, that would be ignoring the details contained in the latest submission.
The charges have been revised. The alleged roles of Ruto, Kosgey, and Sang have been clarified. The prosecution has offered greater detail about how it believes Ruto, Kosgey, and Sang were allegedly involved in crimes against humanity.
First, the prosecution is categorical in its view that Ruto was the alleged leader of what it calls “a network of perpetrators”, or “The Network,” in short. Kosgey, in the prosecution’s view, was Ruto’s alleged deputy and co-mastermind. Sang, according to the prosecution, allegedly took part in meetings planning the violence and his alleged key role was to use his position at Kass FM, a Kalenjin radio station, to broadcast coded messages to those who were directly involved in the violence.
According to the prosecution, Ruto, Kosgey, and Sang took part in at least nine meetings or events between December 2006 and January 2008, where it was decided and planned to attack residents of Kenya’s Rift Valley region, who were perceived to be against the interest of the Kalenjin ethnic group that Ruto, Kosgey, and Sang belong to. The aim was to expel the Kikuyu, Kamba, and Kisii from the region as well as ensure the Kalenjin voted as a bloc during the December 2007 election, the prosecution’s submission says.
Ruto and Kosgey went about this by creating, “a network of perpetrators,” that consisted of political leaders (serving and aspiring members of parliament and councillors), elders, businessmen, and former police and army officers. According to the prosecution, Ruto was accepted as the leader of this “Network,” and Kosgey as his deputy. They identified the areas with a high population of Kikuyu, Kamba, and Kisii; chose men who would be commanders responsible for coordinating the attacks; and funded the purchase of arms as well as got others to finance logistics and food, among others, says the prosecution. The prosecution’s submission details five specific areas of attacks, narrating its version of how and when those attacks took place and who was involved.
Most of these details were not in the December 2010 submission when the prosecution applied to the Pre-Trial Chamber to issue summons for the three men. Also, whereas in the December submission the prosecution included all three men in all the counts it wanted them charged with, it has since revised those counts. It has excluded a count of torture constituting a crime against humanity, which its December submission contained. The prosecution is also charging Sang separately from Ruto and Kosgey. Now, whereas Ruto and Kosgey jointly face three counts of crimes against humanity, Sang faces his charges alone. However, for all three the charges are the same: one count of murder constituting a crime against humanity; a second count of deportation or forcible transfer of population constituting a crime against humanity; and a third one of persecution as a crime against humanity.
How the prosecution arrived at these counts and came up with the details it has, only the judges of Pre-Trial Chamber know because the prosecution has submitted a list of evidence that it has requested the Chamber’s single judge to keep confidential due to its sensitive nature. Unlike the December submission, which was heavily redacted and offered only in broad terms the prosecution’s case, this recent disclosure offers some clues as to what the prosecution’s evidence may be.
The prosecution’s document offers details that only people who participated in the meetings between December 2006 and January 2008 could have known. The “network of perpetrators,” the prosecution describes is an ad-hoc group. It is not an institution of the Kalenjin ethnic group so would not have a tradition of minutes and other practices that a more permanent organization would have. A lot of what happened and decided was communicated verbally, and the likely source of information would be participants of those meetings as well as those who implemented the structures that were agreed to and followed. Therefore, at the moment it looks like the prosecution’s case hinges a lot on whether it has credible witnesses.
It follows that the lines of defense are likely to be to disprove there was such a network; show their clients were only involved in community development and the ordinary course of political campaigns in the lead-up to a hotly contested election; and discredit any witness statements the prosecution produces.