Four prominent Kenyans are one step closer to going to trial before the International Criminal Court (ICC) after judges refused to allow them to appeal a January decision that they should be tried for crimes against humanity.
The Pre-Trial Chamber’s majority decision followed an earlier one by the Appeals Chamber not to grant a request to suspend trial proceedings as an appeal on the ICC’s jurisdiction and related matters is determined. Defense lawyers had asked for the suspension orders as they argue their challenge on whether the ICC should be involved in adjudicating the crimes committed during two months of bloodletting that followed the controversial December 2007 presidential election in Kenya.
The judges of Pre-Trial Chamber II made their decision on Friday, March 9. Judges Ekaterina Trendafilova and Cuno Tarfusser declined to grant leave to appeal to Deputy Prime Minister Uhuru Muigai Kenyatta, former Cabinet Minister William Samoei Ruto, former Secretary to the Cabinet Francis Kirimi Muthaura, and radio journalist Joshua arap Sang.
Kenyatta and Muthaura each face five counts of crimes against humanity. Ruto and Sang each face three counts of crimes against humanity.
The third judge of Pre-Trial Chamber II, Hans-Peter Kaul, did not give an opinion on whether the four accused should be allowed to appeal the decision to send them to trial. Kaul said that he thought since he declined to confirm the charges against the four, “I feel barred, at least in principle, from pronouncing a view,” on the defense applications for leave to appeal.
Ruto and Sang, who are the accused in the first Kenya case, had presented four issues each that they had requested leave to appeal on. The judges found that they had three common issues between them.
The lawyers for both Ruto and Sang argued that the prosecution had failed to conduct proper investigations. They also argued that the judges did not weigh the evidence given by defense and prosecution witnesses in a reasonable and consistent manner. Lastly, they contended that the charges the prosecution framed were not exhaustive because they did not include the identities of other alleged co-perpetrators or specifics about the members of the organization the accused are alleged to have contributed to.
The judges determined that on these points the defense teams’ arguments were a disagreement of legal interpretation rather than raising issues that needed to be appealed. The judges further noted that in some instances the defense lawyers misrepresented the information available to the court. The judges said that they were guided by what, in their view, are two requirements that must be satisfied for a leave to appeal to be granted.
One is “a decision must involve an ‘issue’ that would significantly affect (i) both the “fair” and “expeditious” conduct of the proceedings (ii) or the outcome of the trial.” The second is that “an immediate resolution by the Appeals Chamber is warranted as it may materially advance the proceedings.”
The fourth issue on which Ruto’s lawyers argued was that the judges relied on anonymous evidence to reach their decision without counterbalancing it. The judges also found on this issue that Ruto’s lawyers misrepresented the decision they reached to confirm the charges, and the issue the defense raised was a disagreement on how the judges evaluated the evidence rather than bringing out an issue to appeal on.
The fourth issue on which Sang’s lawyers argued was that the judges failed to set a threshold for the alleged contribution of their client to the crimes he is being charged with. The judges declined to allow an appeal on this issue because, in their view, the argument Sang’s lawyers’ made is based on a misconception and misreading of the judges’ decision to confirm charges against their client.
Lawyers for Kenyatta and Muthaura presented 13 issues that they wanted to be granted leave to appeal. The judges identified one issue that was common between the two separate applications. Both defense teams argued the judges had, while assessing the evidence, reversed the burden of proof from the prosecution to the defense. The judges disagreed and declined to grant their request to appeal this issue.
Kenyatta’s lawyers presented four additional issues. The first was that the prosecution failed to investigate evidence that favors the defense or looks into the reliability of evidence the prosecution received. The judges concluded that in substance Kenyatta’s lawyers had expressed a disagreement with their findings rather than raising an issue that can be appealed.
Another issue raised by Kenyatta’s team is that the judges gave significant weight to prosecution witnesses and failed to give significant weight to defense evidence challenging the credibility of those witnesses. The Kenyan Deputy Prime Minister’s legal team also said another issue they wished leave to appeal on was the allegation of a November 26, 2007 meeting at the official residence of the president during which their client is alleged to have met with members of the Mungiki gang. The third issue they raised was that the judges relied on anonymous witnesses and indirect evidence to establish key meetings took place.
The judges concluded that these issues “do not rise beyond simple expressions of disagreement with the Chamber’s assessment of the evidence before it.”
The judges similarly concluded that the other seven issues Muthaura’s lawyers raised did not constitute grounds for appeal and refused to grant them leave to appeal.
No date for trial in either case has been set.