A hearing on whether or not to confirm charges against two politicians and one radio journalist from Kenya commenced on Thursday, September 1, 2011 before three International Criminal Court (ICC) Pre-Trial Chamber judges in The Hague.

Members of the Kenyan Parliament, William Samoei Ruto and Henry Kiprono Kosgey, and journalist Joseph Arap Sang, accompanied by their defense counsel, all attended the first day of the confirmation of charges hearing, during which judges will decide whether or not the suspects should be tried for crimes against humanity – including murder, forcible transfer of population, and persecution – with which ICC Prosecutor Luis Moreno-Ocampo has charged them.

The suspects first appeared voluntarily before the Court on April 7, 2011, when the Prosecutor first presented the charges against them in connection with the December 2007 to January 2008 post-election violence in Kenya, when more than 1,220 people were killed, 3,500 were injured, and 350,000 were displaced.

Thursday’s hearing, the first of ten days devoted to ascertaining whether “reasonable grounds” exist to believe that each suspect committed each of the crimes with which he has been charged, proceeded well ahead of pace.  In addition to the Prosecutor, defense counsel for all three suspects submitted opening statements, which had been scheduled to take place Friday morning.

Presiding Judge Ekaterina Trendafilova, who managed the courtroom amicably but firmly, encouraged all parties to be concise and to avoid redundancy, addressing defense concerns that the schedule proposed by the Chamber was unreasonably burdensome on the suspects.  On several occasions on Thursday, Judge Trendafilova challenged counsel to remain on task and not to delve needlessly into the merits of the case, for which the remaining nine days afford plenty of opportunity.

In his opening statement, the Prosecutor claimed to represent the 117 State parties – including Kenya itself – that had affirmed the need to prosecute crimes against humanity.

He alleged that the crimes in question “were not spontaneous,” accusing Mr. Ruto and Mr. Kosgey of having planned the violence well in advance, motivated by a desire to create a “uniform voting bloc” in the Rift Valley province of Kenya to advance their own political careers.

The Prosecutor briefly detailed his account of that planning, which he alleged to have included the use of the media to indoctrinate supporters of the Orange Democratic Movement (ODM) systematically to displace supporters of the Party of National Unity (PNU) through “encoded speech” on Kass FM, the Kenyan radio station where Mr. Sang still works.

That displacement, the prosecution explained, was achieved through murder, the burning and destruction of homes, the looting of property, and other forms of systematic violence and persecution, all of which had been “intended” by the suspects.

For their part, defense counsel emphasized the insufficiency of evidence to convict their clients and accused the prosecutor of failing “completely” to fulfill his obligation to investigate exculpatory evidence.  Defense lawyers called their clients “God-fearing,” a “family man,” and “cosmopolitan,” referring to their clients’ relationships with members of various Kenyan tribes, including those allegedly targeted for murder, displacement, and persecution.

Mr. Kioko Kilukumi Musau, counsel for Mr. Ruto, disputed the elaborate planning alleged by the prosecution.  He observed that the prosecution’s theory concerned the Rift Valley province only, whereas six out of eight provinces in Kenya erupted spontaneously into violence following the election, violence he deemed a “concurrent and instantaneous reaction to the announcement of the [presidential] results.”

Mr. Musau likewise characterized the prosecution’s case as “unprofessional, half-baked, and unreasonable,” deeming elements of the prosecution’s theory to be entirely “fictitious.”

Mr. Joseph Kipchumba Kigen-Katwa, counsel for Mr. Sang, argued that even the prosecution’s own evidence, “in every single detail,” exculpated his client.  He nevertheless challenged the credibility of prosecution witnesses and questioned the prosecution for “avoiding” the opportunity to have interviewed his client.

Mr. Ruto and Mr. Sang both addressed the Court with brief, unsworn statements.  Each emphasized his Christian conviction and denied an ability to participate in planning the killing of other men. 

Before presenting their opening statements, defense counsel had an opportunity to submit additional observations respecting jurisdiction, admissibility, and procedural matters.

Mr. George Odinga Oraro, counsel for Mr. Kosgey, insisted that the crimes, “grave as they are,” do not trigger the jurisdiction of the ICC, since they fail to satisfy the definition of crimes against humanity codified by the Rome Statute.

The Pre-Trial Chamber has already ruled in favor of jurisdiction, and the Appeals Chamber – on Tuesday of this week – has reaffirmed the admissibility of the case.

Nevertheless, defense counsel surely recall Pre-Trial Chamber Judge Hans-Peter Kaul’s two dissents – from the decision authorizing the investigation and from the decision issuing summonses – on grounds similar to those raised before the Court today.  If the defense can persuade one more judge to join the view of Judge Kaul, they will be spared the burden of proving their clients’ innocence, since the case would be dismissed for lack of jurisdiction.

Ms. Sureta Chana, Legal Representative of the Victims, likewise submitted an opening statement before the Court.  Speaking on behalf of 327 victims admitted to participate, Ms. Chana emphasized that the victims have a “natural desire to see justice.”

Recalling that no justice had been achieved in relation to violence following elections in Kenya in 1992 and 1997, Ms. Chana proposed that victims especially desire justice now, to deter ethnic and election-related violence in the future.  She added that most victims expressed disbelief that the “rich and powerful” could be charged with crimes, being unaccustomed to the rule of law.

Ms. Chana will have an opportunity to present a closing statement, likely on Friday, September 9, or Monday, September 12, when the hearing is scheduled to close.

Jeffrey Pierce (Stanford Law School) and Alpha Sesay wrote this report.