The Hague: Final submissions


JF-Expert Member
Nov 22, 2007
By Evelyne Kwamboka
Confirmation hearings against first three Kenyans at The Hague ended with spirited defence statements by the lawyers for the suspects and a strong fight-back by Prosecutor Luis Moreno-Ocampo’s side.
With the closure of the hearings the judges nowhave 60 days to rule if initial evidence presented can support crimes against humanity charges in full trial against Eldoret North MP William Ruto, Tinderet MP Henry Kosgey, and Kass FM presenter Joshua arap Sang

It is expected that the ruling will be out on December 24, a day before Christmas, because the 60-day count begins on October 24, when the defence must have submitted its final written submissions.
The outstanding statements of the day appeared to be stern warning the Bench gave the three suspects on witnesses and victims, as well how to conduct themselves.
There was also the declaration by the prosecution, in response to adverse claims made against Prime Minister Raila Odinga over the violence that rocked Kenya after 2007 elections, that they found no evidence to link him to the violence.

The prosecution has no evidence at this stage showing Raila Odinga was involved in the crimes before this court," said Moreno-Ocampo’s representative Cynthia Tai.
Within the 60-day period, Pre-Trial Chamber II judges have to rule if the evidence is sufficient to commit either one, two, or all of suspects, to full trial, and on either all or some of the charges against them.
The country now awaits not only the ruling cases involving Ruto, Kosgey and Sang, but also the confirmation hearings on a similar case against the second batch of three Kenyan subjects, which begins on September 21.
Those in the second case are Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura and Maj-Gen (Rtd) Hussein Ali, who was Police Commissioner during post-election violence.
There were four main highlights to the last day of the confirmation hearings:
*Presiding Judge Ekaterina Trendafilova’s stern warning to Ruto, Kosgey and Sang not to approach or intimidate any witness or victim, and not to involve themselves in any activity that could trigger or incite another wave of violence in Kenya.
According to the court rules, a breach of these conditions could lead to the judges taking such drastic action as confining the errant suspect in an International Criminal Court facility.
Witnesses threatened
*There was consternation in the court when the counsel for the victims Sureta Chana in her closing submissions read out an e-mail from one of her peace workers in Kenya, narrating a broadcast message by Belgut MP Charles Keter, threatening ICC witnesses.
The MP was quoted in the e-mail claiming on Kass FM radio interview on Wednesday that: "The evidence so far given against the suspects at The Hague was far-fetched and was concocted by Party of National Unity." They now knew the identity of the ICC witnesses, which is protected and they would face unspecified actions; and that claims made at the ICC targeted Kalenjins as a whole.
Chana, who is also a judge in the UK, told the court the statement made by the MP was inciting.
*Defence lawyers for Ruto, Kosgey and Sang discredited Ocampo witnesses and cast the prosecutor’s case as built on fiction by creative minds, shoddy or even non-existent investigation, and undermined by contradictions and glaring inaccuracies.
Tai responded, saying the prosecution case was watertight, the suspects only preached peace after the violence to cover their tracks, and their alibis were not convincing because with the use of helicopters, they could be in more than one place in a day. She also argued two of the witnesses presented by the suspects – former GSU commandant Samson Cheramboss and Emo patron Bishop Jackson Kosgey – were unreliable and suspect because the prosecutor in his investigations had listed them as ‘co-conspirators’.
*Kigen for Sang summarised Ocampo’s witnesses as unreliable because they were, ‘anonymous, self-confessed criminals, contradicted each other, and gave nothing beyond their words to prove their claims against the suspects.
He took offence with Tai’s argument that Sang’s peace messages were part of a scheme to conceal his crimes.
"Mr Joshua arap Sang is not Kass FM and to bring him here as an entity called Kass FM is what the counsel for the victims has done,’’ he argued.
Political scheme
Ruto’s lawyer Kioko Kilukumi described his client’s predicament as a political scheme to lock him out of next year’s presidential election. He asked the court to be cautious when evaluating his evidence because he shied away from calling live witnesses.
Kilukumi argued prosecution’s Witness Number One had drawn a chart that was presented to the court, showing Raila was the ‘chief’ of one of the ‘networks’ that planned the violence, and Ruto and Kosgey reported to him. He said the prosecution’s witnesses were questionable, adding that some of them have since relocated to higher income earning countries.
The prosecution statements before the court, he argued, "were from self-confessed witnesses", and were, "tailor made for ICC".Lawyer David Hooper, also representing Ruto and Kigen Katwa for Sang, had accused Ocampo of ignoring witness statements touching on Raila during the hearing that took seven days.
In her closing statement, Tai requested the judges to confirm charges against Ruto, Sang and Kosgey.
She pointed out that the real picture on contradictions and questionable evidence of witnesses produced by the defence showed during the cross-examination.
The Bench made up of Justices Hans Peter-Kaul, Cuno Tarfusser and Trendafilova heard that two defence witnesses – Kosgey and Cheramboss – were implicated in post-election violence.


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