Today, International Criminal Court (ICC) judges spoke directly to the Kenyan people, demanding they do not harm witnesses or victims in the two Kenya cases before them.
The Pre-Trial Chamber II judges additionally assured Kenyans that they will reach independent and impartial decisions on the two Kenya cases. Presiding Judge Ekaterina Trendafilova made the statement on behalf of her fellow judges at the close of hearings to determine whether the cases proceed to trial.
Since the first set of proceedings, officially called confirmation of charges hearings, commenced on September 1, 2011, Kenyan television channels have broadcast live all the court sessions, interrupting their regular programming. During the hearings there have been media reports of threats to the families of people suspected of being prosecution witnesses. The identity of prosecution witnesses is protected and they are not publicly known, and in both Kenya cases, lawyers representing victims have said their clients fear for their safety.
“The bench would like to address the citizens of Kenya to respect the life, security, and property of witnesses and victims of the two Kenya cases,” said Trendafilova. She reminded Kenyans that the people who went to The Hague to testify were doing their “civil duty” and should not be threatened.
“I want to assure the people of Kenya that the judges of this chamber Judge Hans Kaul-Peter, Judge Cuno Tarfusser, and myself will take their decision independently and impartially and only after having carefully examined all pieces of evidence presented by both parties so that justice will be served to everyone concerned,” Trendafilova said.
Related to this was the closing statement of the lawyer for the victims, Morris Anyah. He requested the judges to consider announcing their decision on the Kenya cases at the same time, even though the hearings for the two were held on different dates. After each set of hearings, the judges have given all concerned deadlines to submit written observations. It is at the end of these deadlines that the 60-day limit for the judges to rule on each case starts.
“But with respect to this case, the victims hope, wish, desire that whatever decisions your honors arrive at, that your honors issue those decisions simultaneously because they affect different communities,” Anyah said. Anyah was referring to the fact that in each case, victims’ lawyers are representing people who were targeted for their ethnicity during the bloodshed that wrecked Kenya between December 2007 and February 2008. Anyah has said the majority of his clients are Luos. In the first Kenya case, the victims’ lawyer has said the majority of her clients are Kikuyu.
Wednesday was the day for all lawyers to make their closing statements in the case in which ICC Prosecutor Luis Moreno-Ocampo wants three suspects charged with five counts of crimes against humanity. The three suspects are Head of Public Service and Secretary to the Cabinet Francis Kirimi Muthaura, Deputy Prime Minister and Finance Minister Uhuru Muigai Kenyatta, and former police chief Mohammed Hussein Ali. Moreno-Ocampo alleges the three men were the masterminds of or contributed in a huge way to the killing of non-Kikuyus in Nakuru and Naivasha in late January 2008 in retaliation for the killing of Kikuyus earlier that month in the northern part of the Rift Valley. Moreno-Ocampo claims the Mungiki criminal gang, which is made up of young Kikuyu men, carried out the killings and the police allowed them to commit the crimes.
Three other suspects are facing separate charges at the ICC for the violence in the northern Rift Valley.
Prosecutor Adesola Adeboyejo said the prosecution had met the threshold required for the case to go to trial because it had submitted the statements of 12 witnesses to back up its allegations and these witnesses are backed by reports of Kenya’s National Security Intelligence Service and non-governmental organizations, among other sources.
Adeboyejo said that defense lawyers had challenged the credibility of some of the prosecution witnesses without taking into account what all the 12 prosecution witnesses said about the allegations. She said the statements of some of the prosecution witnesses corroborated what other prosecution witnesses have given in evidence.
“Judging credibility and weighing the evidence is not what happens at this stage,” of the ICC process, said Adeboyejo. “The prosecution reiterates the credibility of the witnesses it has put before this court.”
Anyah said that he saw his role in the process as being “a reality check,” for what would otherwise be regular criminal proceedings. He gave the example of children who survived the violence but still live in camps and cannot continue with their schooling.
“They will tell tales 25 years from now that, ‘I did not finish primary school. I did not finish secondary school because there was post-election violence’,” Anyah said.
The victims are convinced the standard for confirming the charges has been met and, “we should go to trial,” Anyah said.
Muthaura’s lead lawyer, Karim Khan, began his closing statement by paraphrasing a line from William Shakespeare’s play “Macbeth,” to illustrate his view that the prosecution had turned on its head everything presented in court over the past 12 days.
“Fair will have to seem foul and foul would have to seem fair. It made me wonder if I had been in the same court room for the last 12 days or so,” Khan said. He challenged the prosecution’s evidence saying its witnesses were not credible and the allegations they made could not stand scrutiny.
He also read several statements from the victims represented in this case, all of whom narrated how the police came to their aid when they were under attack.
“These witnesses, these victims are saying they are protected by an arm of government that is involved in a criminal plan that Muthaura is involved in. This is ludicrous,” Khan said.
“The prosecution have patently failed to investigate. This is really a critical failure in this case,” Khan said. “It’s our respectful submission that this case compels your honors but to one conclusion and that is that the charges should not be confirmed.”
Kenyatta’s lead lawyer, Steven Kay, stated the prosecution’s evidence did not add up. He said that two witnesses he described as the prosecution’s “trump card,” were not credible as a private investigator hired by Kay’s firm had shown.
Kay said that the prosecution had an hour to cross-examine his client but failed to show clearly what evidence it had against Kenyatta.
“If the prosecution had wanted to go on they could have. In fact they went short. They couldn’t even fill that hour. It was an empty hour,” Kay said. “Those moments in any criminal proceedings are telling moments as to whether there is a case or not.”
He said that the evidence the prosecution had presented did not show substantial grounds warranting a trial.
“Is it good enough? In our submission to the court, it is not good enough,” Kay said.
Ali’s lead lawyer, Gregory Kehoe, said that the prosecution had failed to follow the trail of documents that showed Ali had instructed his officers to go to the aid of victims and restore law and order not just in Nakuru and Naivasha, but across the country.
Kehoe said that there was not credible evidence presented to show that Ali had received a phone call from Muthaura ordering him to provide a free zone to Mungiki to carry out its killings in Nakuru and Naivasha. He added that there was no evidence to show Ali implemented any such order or that the rest of the police force complied.
He concluded by quoting Abraham Lincoln before he became U.S. president in 1860.
“And so let us have faith that right makes might and in that faith let us dare to do our duty as we understand,” Kehoe said. The right thing, Kehoe said, was what Ali and the police did, “to save this country from anarchy and nothing that has been presented to this chamber negates that.”