The Defense Strategy: Ruto, Kosgey and Sang

Defense lawyers for three of the six Kenyan suspects before the International Criminal Court are planning to argue that the charges against their clients do not meet the threshold of crimes of humanity, and that therefore they should not be tried at the court.

The ICC prosecutor’s office wants to bring three counts of crimes against humanity against former Higher Education Minister William Samoei Ruto, former Industrialisation Minister Henry Kiprono Kosgey and prominent journalist Joshua arap Sang.  

A confirmation of charges hearing before the court’s Pre-Trial Chamber, which will determine whether the prosecutor’s evidence is sufficient to go to trial, is scheduled to begin at the ICC in The Hague on September 1.

The defense lawyers’ legal strategy is outlined  in observations filed with the court on Monday,  in response to a request from the ICC’s Pre-Trial Chamber.

Judge Ekaterina Trendafilova, who was designated to handle matters that arise from the disclosure stage of the proceedings, had asked all parties concerned to indicate what challenges to the case they intend to make, and how long they intend to argue their points and direct or cross-examine witnesses.

George Odinga Oraro, the lawyer representing Kosgey, said in his observations that he intends to challenge the ICC’s jurisdiction, specifically whether the prosecutor’s evidence can be considered to demonstrate that there was deliberate and accepted policy in place, by the state or a recognized organization, that enabled the crimes to be committed. This is one criterion for an offence to be considered a crime against humanity. It is also the criterion that Judge Hans-Peter Kaul used as one of the reasons for his dissent from his fellow two judges in their decision to summon Ruto, Kosgey and Sang to The Hague.

Joseph Kipchumba Kigen-Katwa, on behalf of his clients Ruto and Sang, said in his observations that he will also challenge the ICC’s jurisdiction. He adds he will also challenge whether the case should be heard at The Hague at all, as opposed to before a local court in Kenya. He, however, qualifies that by saying the second challenge depends on whether the Kenyan government will have concluded a similar challenge, which is now before the Appeals Chamber of the ICC.

Judging by the fact that Kigen-Katwa filed observations on behalf of Ruto and Sang about how their defence will be conducted it can be concluded that both men intend to fight their case together. In his observations, Kigen-Katwa goes to say two witnesses will be called for both Ruto’s and Sang’s defense and lawyers will require equal time to make opening remarks, challenges to the prosecutor’s evidence, and closing submissions for both men’s defence. This is despite the fact that Prosecutor Luis Moreno Ocampo wants the two men charged separately.

But Kosgey, whom the prosecution wants charged together with Ruto, has decided to take a separate approach. This is in contrast to April 7, when the three men made their initial appearance before the ICC. At the time they sat together. It seemed to be a symbolic gesture to show that they would face the case together.

All the defense lawyers, however, have revealed little how they intend to challenge the evidence that will be presented against their clients come next week. Most of their evidence and statements they will be using are  available only to the prosecutor and the judges of the Pre-Trial Chamber II. That said, a confirmation of charges hearings is primarily to test that the prosecutor has a case that can go to trial, so the defence role is limited compared to an actual trial.

The public documents available so far just show that the lawyers for Ruto, Kosgey and Sang will present three witnesses in total, despite having originally said they would present as many as 43 witnesses. But Judge Ekaterina Trendafilova ruled that because confirmation of charges hearings are not a trial and the focus was on the prosecutor proving his case was worth taking to trial, the defense did not need to have so many witnesses at this stage.

The prosecution alleges that Ruto was the leader of a group of perpetrators who carried out attacks on residents of five areas in the northern part of Kenya’s Rift Valley region between December 2007 and February 2008.

The prosectuor’s office says the attacks followed the botched presidential election of December 2007, during which current President Mwai Kibaki was controversially declared the winner.  Ruto was a key leader of the Orange Democratic Movement party that was challenging Kibaki and his Party of National Unity at the time.

The prosecution further alleges that Ruto, as leader, and Kosgey, as his deputy, participated in planning and financing those attacks. It says the attacks targeted Kikuyu, Kamba and Kisii residents who were perceived to be supporters of Kibaki and his Party of National Unity. The prosecutor alleges Sang used his position as a popular radio presenter to send coded messages to people carrying out the attacks.

The confirmation of charges hearing in the case against the three is scheduled to go open on September 1 and run until September 12. The confirmation of charges hearing for the second case against three other prominent Kenyans—Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali—is scheduled to open on September 21.

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