ICC Suspects Want Ocampo Reprimanded

Oliver Mathenge

18 May 2011

Nairobi — Eldoret North MP William Ruto and radio presenter Joshua Sang want judges at the International Criminal Court to reprimand Prosecutor Luis Moreno-Ocampo over a document he filed last week.

The two ICC suspects have requested the Pre-Trial Chamber to consider sanctioning the Prosecution for misconduct. They argue that the Prosecutor has embarrassed the court by asking the judges to make findings on “baseless assertions and allegations made by the media and NGOs without foundation against the integrity of the domestic judicial proceedings and Government actions in Kenya.”

ICC rules sets out the possibility that the Chamber may, after warning an official of the Court, interdict that person from the proceedings and from exercising their functions on a temporary basis.

The two as well as Tinderet MP Henry Kosgey also want the judges to strike the document from their records and thereby disqualify the filing from the Chamber’s consideration in the admissibility challenge filed by the Kenyan government.

“Should the filing be re-filed in the Kenya situation, the Pre-Trial Chamber should order the Prosecution to formally apologise to the Defendants and withdraw all unfounded and prejudicial allegations,” Mr Ruto and Mr Sang tell the judges.

Mr Kosgey argues that there is no foundation for the Prosecution’s decision to file its Response adding that it is prejudicial to the rights of the Suspects having appeared in response to the summons and there being no allegation that they are in breach the conditions set by the Chamber.

“The Defence is concerned that the Prosecutor has under the guise of responding to the said Request by the Government of Kenya, mounted a scurrilous attack on the suspects without identifying their individual culpability,” Mr Kosgey says.

He adds that the Prosecutor has attributed “perceived weaknesses” of the Kenyan government on the suspects generally and that to allege without showing good or proper cause that the said suspects are a danger to the victims and witnesses is “inimical to the fair hearing of the proceedings for Confirmation of the Charges”.

In his submission, Mr Moreno-Ocampo argued that he used recent developments and which he has picked from media reports to support his quest to deny Kenya access to his evidence.

One of his point of argument relates to Mr Ruto whose fraud case was recently dismissed by the Kenyan courts for lack of sufficient evidence.

“In particular, it is noteworthy that five witnesses slated to testify against him died before trial, 13 witnesses disappeared and could not be located, and remaining witnesses who survived and were available to testify recanted their previous incriminatory accounts and exculpated Ruto,” the ICC prosecutor argues.

He also quotes Kenyan newspapers on April 28 reporting on the killing of former senior Deputy Commissioner of Police in charge of the Kenya Police Training College, Bernard Kimeli.

“He was killed in his house in a rich and well-protected suburb of Nairobi. Media reports and comments on Kenyan websites and blogs allege that his murder was probably linked to OTP investigations because his attackers only took documents from his house,” Mr Moreno-Ocampo argues.

The Prosecutor also tells the judges that though President Kibaki and Prime Minister Raila Odinga have vowed to cooperate with the ICC, the six suspects are likely to influence their decisions now.

“The Prosecutor submits that currently the suspects or their allies are able to influence the Kenyan government’s position; they have transformed a judicial case against six individuals into a national problem,” says Mr Moreno-Ocampo.

He also argues that the government does not explain how the it would ensure that any materials provided would be kept away from its members – Finance minister Uhuru Kenyatta, head of civil service Francis Muthaura and Postmaster General Hussein Ali – who are suspects before the ICC .

The prosecutor also says that it appears that the suspects have influence sufficient to affect the Government’s policy and that since the presentation of their case before the Chamber some government officials have been campaigning to derail the Prosecutor’s investigations.

“Members of the Kenyan government attempted to irregularly fast-track nominees for the posts of Chief Justice, Attorney General, Director of Public Prosecutions, and Controller, critical positions if the Kenyan judicial system will investigate the crimes,” Mr Moreno-Ocampo says.

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