The lawyer representing victims in the Kenya cases before the International Criminal Court (ICC) is likely to ask judges during hearings that begin next week to reevaluate the charges of crimes against humanity the suspects are facing to include infliction of injuries, destruction or burning of property, and looting.
Kenyan lawyer Sureta Chana, who was only appointed on August 5, 2011 to be the common legal representative for victims in the Kenyan cases, raised the possibility during an application to Judge Ekaterina Trendafilova on August 15. The substance of her application was that the three counts of crimes against humanity facing former Higher Education Minister William Samoei Ruto, former Industrialisation Minister Henry Kiprono Kosgey, and prominent journalist Joshua arap Sang are incomplete. Chana argues they do not cover all that the victims suffered during Kenya’s upheaval between December 2007 and February 2008.
Ruto, Kosgey, and Sang face confirmation of charges hearings next week. The proceedings are intended for Prosecutor Luis Moreno-Ocampo to demonstrate that the evidence he has against the three men is sufficient to take to trial. The three will be calling witnesses and challenging the prosecutor’s evidence.
Chana said that as the victims have indicated that they will seek reparations for the destruction and burning of their property and the prosecutor did refer to such acts happening in his document elaborating his charges, then such crimes are significant enough to be included in the current case. She also further noted that infliction of injuries and looting had not been addressed in the charges against the three men, yet the victims felt those crimes were equally serious and warranted to be included in the case.
Judge Trendafilova ruled on August 19 that Chana’s application was premature because the points raised in it can only be tackled during the confirmation of charges hearing stage. The judge did not rule on the merits of the points Chana raised but advised that it is within the purview of the Pre-Trial Chamber, as a result of evidence presented during the confirmation of charges hearing, to ask the prosecutor to modify the charges he has already prepared.
The involvement of victims beyond the role of witnesses during criminal legal proceedings will be new for most Kenyans, who will be following the ICC cases. Stella Ndirangu of the Kenya section of the International Commission of Jurists (ICJ) says this is also new for most jurisdictions.
“It’s unique to the ICC process,” says Ndirangu, a programme manager of ICJ-Kenya. “Even in the ICTR [International Criminal Tribunal for Rwanda, which is trying the suspected masterminds of the 1994 Rwanda genocide], victims were never given that place or given a voice or special recognition in the process.”
Ndirangu explained that a prosecutor is usually only focused on presenting the best case possible and may ignore issues that are not likely enable him or her to secure a conviction, whereas victims are interested in securing a conviction but may also want to tell their story irrespective of getting a conviction. Victims may also be interested in getting reparations. They may also want all the offences committed against them recognized as crimes even if no convictions are secured.
“Sometimes you get victims wanting charges that have been left out [by the prosecution] to be included,” says Ndirangu. “It [the case] will be very different from what the prosecution intended. But it is still a way of getting justice.”
This can already be seen in the current case where Chana is likely to seek additional charges be made against Ruto, Kosgey, and Sang. Chana will take part in the confirmation of charges hearings next week but will not call any witnesses. She has indicated to the judge that she will only be making an opening and closing statement.
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.