The big draw of the upcoming pre-trial hearings in the second Kenya case at the International Criminal Court (ICC) will be when Kenya’s Deputy Prime Minister and Finance Minister, Uhuru Kenyatta, testifies.
What has been novel to the ordinary Kenyan about the ICC process so far will fade once Kenyatta takes the stand on his scheduled day – two Wednesdays from now. The surprise at the politeness of Presiding Judge Ekaterina Trendafilova compared to the rudeness ordinary Kenyans have come to expect from judicial officers will be forgotten, at least temporarily, when the prosecution stands to cross-examine a son of Kenya’s first president and independence hero, Jomo Kenyatta.
The last time prominent and powerful Kenyans testified at public hearings into criminal activity that were televised in Kenya was when the government-appointed commission of inquiry chaired by Court of Appeal judge Philip Waki investigated the violence that is now the subject of the ICC hearings. Those hearings in mid-2008 held public attention.
However, the hearings Kenyatta and his fellow suspects face are not a trial or mini-trial. They are the phase of the ICC process where judges determine whether the prosecutor has evidence worth taking to trial. The judges will not adjudicate on the innocence or guilt of any of the three suspects. The ICC Prosecutor, Luis Moreno-Ocampo, will, however, certainly be seeking to show he has a wealth of evidence to put Kenyatta, Head of Public Service Francis Kirimi Muthaura, and former police chief Mohammed Hussein Ali on trial for five counts of crimes against humanity.
The case against these three individuals and another ICC case against three other prominent Kenyans are the only ones where powerful and influential Kenyans are being held to account for their alleged roles in the bloodshed that followed Kenya’s botched presidential election in December 2007. More than 1,000 people died by the time weapons were put down at the end of February 2008.
If the case is only at the pre-trial stage, why bother having Kenyatta on the stand? This will be a first in the ICC process where a suspect will be cross-examined at the pre-trial stage. There is no precedent to refer to at the ICC. Other international and hybrid courts trying war crimes, crimes against humanity, and genocide, such as the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone, do not have a pre-trial stage as it is structured at the ICC, so they too offer no precedent.
One answer may be Kenyatta’s legal team, following their client’s brief, are seeking to frame the ICC case as a political one. This was the loud rhetoric of Kenyatta and his supporters before he made his initial appearance at The Hague in April. The question they raised was if Moreno-Ocampo had comprehensively investigated the Kenya case why did he not interview Kenyatta? In fact, a suspect in a separate Kenya case, William Samoei Ruto, went further to seek an appointment with the prosecutor’s office. He was granted one and interviewed in November last year and one month later Moreno-Ocampo applied to the court to summon six prominent Kenyans, including Ruto and Kenyatta. The other question Kenyatta and supporters have raised is why it is him and a handful of others being targeted for possible prosecution. The suggestion being that there are other powerful individuals who should be facing a case at The Hague. Following a warning from the judges, the rhetoric has toned down but that view has not changed.
Jack Muriuki, a Kenyan defense lawyer at the International Criminal Tribunal for Rwanda, believes that the political questions are irrelevant now that Kenyatta and others are facing cases at the ICC.
“There may be some political concerns about how they got to court. But once they’re in court it is no longer political. Now the issues are evidential, not political,” Muriuki told ICC Kenya Monitor. “The political angle plays well in the country but it doesn’t necessarily play out well in the court.”
Muriuki says there is no precedent for a suspect taking the stand at the pre-trial stage at the ICC, so the only reference a lawyer can make is to their regular criminal practice. He says one reason a defense lawyer may choose to put their client on the stand is if the client is the best person to repudiate the allegations against them.
“It’s a huge risk but, on the other hand, it has the potential for huge rewards,” Muriuki said.
In the case of Kenyatta, “If he can take the stand and give a credible account of himself, he’s going to gain huge mileage politically and legally,” Muriuki said. “If he has problems answering some questions, if he hesitates then it might look very bad to the judges.”