Defense lawyers for the Kenyan broadcast journalist Joshua Sang have today told Pre-Trial Chamber Judges of the International Criminal Court (ICC) in The Hague that the prosecution’s case against Mr. Sang is very weak and that the radio journalist has only been charged as part of a scheme to implicate prominent Kenyan politician and Member of Parliament William Samoei Ruto.
A member of Mr. Sang’s defense team, Ms. Logan Hambrick told the court today that “the prosecution’s case is weak and does not meet the threshold” necessary to warrant a confirmation of the charges against Mr. Sang.
“Mr. Sang has been brought here as a victim of a scheme to implicate Mr. Ruto and by extent members of his alleged Kalenjin network,” Ms. Hambrick submitted to the judges.
Addressing the Chamber for the first time since the proceedings started, Ms. Hambrick urged the judges that the prosecution’s case should fail, highlighting how various prosecution witnesses have contradicted each other.
Ms. Hambrick told the judges that the case against Mr. Sang only exists because prosecutors had failed to undertake proper investigations. She said that if only prosecutors had searched public records, transcripts of radio broadcasts and media clips, they would have realized that there is no case against Mr. Sang.
Ms. Hambrick referenced a statement made to prosecutors by a particular witness who said that Mr. Ruto had made inciting comments at a rally where a TV network and two newspapers were present but the prosecution had failed to get copies of what was said at the rally from the TV network and the newspaper representatives.
“The prosecution just wasn’t interested” and these public records certainly discredit prosecution witnesses, Ms. Hambrick said.
Ms. Hambrick referred to prosecution witnesses as “career witnesses” who have seized every opportunity to talk to anybody investigating the Post-Elections Violence (PEV) in Kenya.
“The prosecution case is built around people we refer to as career witnesses,” Ms. Hambrick said.
She argued that the prosecution failed to independently investigate the events that obtained in Kenya from December 2007 to January 2008 and have relied solely on reports from Non-Governmental Organizations and other Commissions in Kenya.
Ms. Hambrick raised four points, which according to her, explain why Mr. Sang should not be held liable.
- Mr. Sang did not have the requisite intention to contribute to the commission of Crimes Against Humanity as alleged by the prosecution. The prosecution has asked the Chamber to infer Sang’s mental state from meetings which did not occur.
- There is no nexus between Mr. Sang’s broadcast and the commission of crimes in Kenya. There is no causal link between words on air and the conduct of perpetrators.
- Political speech and rhetoric especially during democratic elections is protected.
- Mr. Sang cannot be held liable for the views of others expressed over KASS FM. Journalists have obligation to air the views of people on air. Just like the BBC cannot be held liable for the views expressed by Saif Ghadaffi, the son of ousted Libyan leader Muamarr Ghadaffi, Mr. Sang can equally not be held liable for the views of others expressed on his radio program.
“We request that you do not confirm the charges brought against Mr. Sang,” she concluded.
Mr. Sang’s defense lawyers also today led in evidence the first of two witnesses to testify for the radio journalist in the confirmation of charges hearing.
Mr. Paul Kiprono Chepkwony, a University Professor from Kenya took the witness stand to talk about Mr. Sang’s radio broadcasts and the events that prevailed in Kenya during the PEV of 2007-2008.
Mr. Chepkwony told the judges that he was a regular listener and had been a guest on Mr. Sang’s radio program on several occasions and never did he hear the radio journalist use coded words or incite violence among his Kalenjin listeners.
Prosecutors allege that Mr. Sang used his radio broadcasts to incite violence by use of coded languages to mainly listeners of the Kalenjin tribe. Prosecutors further say that Mr. Sang screened his callers, some of whom used his radio program to make announcements or communicate certain messages to alleged perpetrators of violence in the Rift Valley Province of Kenya. Mr. Sang has denied the allegations.
According to Mr. Chepkwony, on occasions when he served as Mr. Sang’s studio guest, not a single time did he notice that Mr. Sang knew the identities of the people who made phone calls into his program.
The witness told the judges that he was a member of the Orange Democratic Movement (ODM), a party led by present Kenyan Prime Minister Raila Odinga. The first suspect in this case, Mr. Ruto is also a member of the ODM. The witness left the ODM to join the United Democratic Movement (UDM) when he lost internal ODM elections for parliamentary candidacy. The witness is aware that Mr. Ruto is working towards moving over to the UDM, a party that he (Ruto) helped found in 2002.
The witness asserted that the violence which erupted in Kenya in late 2007 to early 2008 was spontaneous and was not part of an event that had been planned by the suspects as alleged by the prosecution.
Prosecutors and the legal representatives for victims also had the chance to cross-examine the witness.
As the witness concluded his evidence, proceedings were adjourned for the day and when Court resumes on Wednesday, Mr. Sang’s second witness will commence his evidence.