As  the confirmation of charges hearing against three prominent citizens of Kenya moved into a second week, the defense teams for Kenyan Member of Parliament Hon. Henry Kosgey and radio journalist Joshua Arap Sang on Monday September 5 2011 made submissions at the International Criminal Court in The Hague, telling Pre-Trial Chamber judges that prosecutors have not rendered substantial evidence to warrant a trial for their clients and so the charges against them must not be confirmed. This follows similar submissions by defense lawyers for member of parliament William Samoei Ruto whose defense team made submissions on Friday and Saturday of the past week.

Prosecutors allege that Mr. Ruto and Mr. Kosgey are responsible as indirect co-perpetratrors (committing crimes through another person) for the crimes against humanity of murder, forcible transfer of population and persecution committed during the Post-Election Violence (PEV) that engulfed Kenya  in December 2007 to January 2008. Prosecutors allege that Mr. Sang is an indirect-coperpetrator, a substantial contributor to the same crimes that Mr. Ruto and Mr. Kosgey are alleged to have been respponsible for. All three persons have denied the allegations.

In his submission to Pre-Trial Chamber judges on Monday, defense counsel for Mr. Kosgey, Goerge Odinga Oraro argued that for a person to be responsible as an indirect co-perpetrator, there has to be proof that the person made essential contributions to the common plan to commit the crime alleged, that he exercised effective control over the perpetrators and that his will controlled them. The prosecution has not satisfied all these requirements as far as Mr. Kosgey’s alleged involvement in the common plan is concerned, he said.

Mr. Oraro said that the entire case against Mr. Kosgey is “anchored on one unreliable, undisclosed, heavily uncorroborated and anonymous witness” called Witness 6.

This witness, Mr. Oraro submitted, had told prosecutors about the existence of a “network” which sought to eliminate members of the Kikuyu, Kamba and Kissi tribes as supporters of incumbent President Mwai Kibaki’s Party of National Unity (PNU) and to form a uniform voting block for incumbent Prime Minister Raila Odinga’s Orange Democratic Movement (ODM) in the Rift Valley Province of Kenya. The network also sought to stop PNU supporters from celebrating if they won the elections of December 2007.

“This theory is derived only from Witness 6 and even the prosecutor in his opening statement is now running away from it,” Mr. Oraro told the judges.

Mr. Oraro further said that “this objective [as explained by Witness 6] differs from everybody who has carried out investigations into the Post-Elections Violence in Kenya.”

Speaking about the existence of an alleged “network,” Mr. Oraro made efforts to distance Mr. Kosgey from the various arms that existed to make the alleged network effective. These include political leadership, the media component and the existence of a Council of Elders for the network. All of these, Mr. Oraro argued, could not be associated with Mr. Kosgey.

He argued that in order to make Mr. Kosgey a co-perpetrator, there should be a nexus between Mr. Kosgey and the “so-called network.”

Referencing meetings at which Prosecutors say that Mr. Kosgey was present to plan the attacks against PNU supporters, Mr. Oraro said “Mr. Kosgey did not attend any of these meetings.”

“Mr. Kosgey is only introduced in these meetings by Witness 6,” Mr. Oraro said.

On the role of the media, specifically KASS FM, a radio station which Prosecutors say was used to incite violence, Mr. Oraro said that while he was not suggesting that KASS FM was involved in any of the activities suggested by the prosecution, Mr. Kosgey was invited to the station only once in 2010, “well after the 2007 disturbances.”

Mr. Oraro pointed out several meetings which are alleged to have taken place and at which Mr. Kosgey is alleged to have been present. He said there were proofs that Mr. Kosgey was not present at these meetings and was only introduced into the picture by a prosecution witness.

Mr. Oraro argued that several other prosecution witnesses had contradicted the evidence given by Witness 6, on whose statement Prosecutors now sought to rely to implicate Mr. Kosgey.

Mr. Kosgey, Oraro submitted “genuinely doesn’t know and he genuinely didn’t participate.”

“His response to the premature announcement of [Dec. 2007 elections] results was measured and calm…it will really be unfortunate if the charges against him are confirmed based on the evidence that has been disclosed by the Prosecution,” Mr. Oraro concluded.

When defense counsel for Mr. Sang, Mr. Joseph Kipchumpa Kigen-Katwa addressed the judges, he submitted that Prosecutors had presented no evidence to prove that his client had made substantial contributions the the crimes alleged. Prosecutors allege that as a radio journalist, Mr. Sang contributed to the commission of the alleged crimes by “(i) placing Kass FM at the disposal of the organisation; (ii) advertising the organisation’s meetings; (iii) fanning violence by spreading hate messages and explicitly revealing a desire to expel the Kikuyus; and (iv) broadcasting false news regarding alleged murder(s) of Kalenjin people in order to inflame the violent atmosphere.” Prosecutors say that Mr. Sang mostly used coded messages to carryout some of  these duties.

In his submission on Monday, Mr. Katwa said that “all transcripts support the fact that our client did not commit any crime.”

“Nowhere in the transcripts is coded language displayed, nor mention where he tells people to attack. He was a peacemaker,” Mr. Katwa submitted.

Mr. Katwa argued that at material times that Mr. Sang is alleged to have been on radio inciting violence, there was a ban on all live radio broadcast in Kenya and Mr. Sang respected the said ban. He said that it was therefore not possible for Sang to have coordinated any violence using live radio broadcast.

Mr. Katwa challenged the Prosecution to obtain transcripts of all radio broadcasts that Mr. Sang made on KASS FM, transcripts which he said will establish his client’s innocence.

Prosecutors have alleged that Mr. Sang attended several meetings at the residence of the first suspect, Mr. Ruto and that during these meetings, plans were made to carry out the alleged attacks against PNU supporters. Mr. Katwa on Monday did not only argue that Mr. Sang was not present at such meetings, he further submitted that such meetings did not even take place.

While submitting records through photographs, to indicate that Mr. Sang was present at different events at those material times, he also argued that said meetings could not have taken place because the person who is alleged to have hosted said meetings, Mr. Ruto, was at different political gatherings, all of them more than 160 KM from his residence. Mr. Katwa displayed videos of political rallies, which were organized by the ODM and at which Mr. Ruto was present. The dates shown on the videos coincide with the dates on which Mr. Ruto is alleged to have hosted some of these meetings.

All these, Mr. Katwa argued, show proof that Mr. Sang could not have been present at any preparatory meetings at Mr. Ruto’s residence as alleged by the Prosecution.

The hearing will continue on Tuesday, when Mr. Katwa will continue making submissions on behalf of Mr. Sang.