Throughout the recently concluded confirmation of charges hearings in the Orange Democratic Movement (ODM) case presiding Judge Ekaterina Trendafilova together with the prosecutor reminded us again and again that the hearings should not be seen as a “mini-trial.” However, if not a mini-trial, what exactly is it all about and what impact do these hearings have beyond the court room?

According to article 61(1) of the Rome Statute, “within a reasonable time after the person’s surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial.” The same provision lays down a number of requirements on the parties, such as an obligation for the prosecutor to provide the suspect with a copy of the document containing the charges as well as an obligation to inform the suspect about the “evidence on which the Prosecutor intends to rely at the Hearing.” But the Rome Statute itself offers few clues as to what purposes the confirmation hearings serve.

Perhaps because the confirmation hearing is an innovation of the Rome Statute, there is also more generally an amount of confusion concerning the nature and objectives of this proceeding, something which was also evident in some stages of the recently concluded ODM hearings.

Some guidance, however, can be found in the court’s case law. In the Thomas Lubanga case, Pre-Trial Chamber I held that the “purpose of the confirmation hearing is limited to committing for trial only those persons against whom sufficiently compelling charges going beyond mere theory or suspicion have been brought”. The Chamber further emphasized that “this mechanism is designed to protect the rights of the Defence against wrongful and wholly unfounded charges” in paragraph 37 of the decision found here. In other words, the International Criminal Court (ICC)  judges view the confirmation hearing as a safeguard against committing for trial persons who are unlikely to be convicted due to the insufficiency of the evidence; as a measure put in place to test the credibility of the prosecutor’s charges at a stage where the judges have already found some indications of the suspect’s involvement in the crimes but have not yet had a chance to hear the suspect’s side of the story.

Though it is certainly an admirable objective to protect the suspect against a potentially frivolous or even abusive prosecutor, the hearings may have other far-reaching consequences for the suspects as well as the society around them, which may make some speculate whether not the hearings are in fact close to a mini-trial.

While an accused person can only be convicted by the Trial Chamber to the extent that the court is “convinced of the guilt of the accused beyond reasonable doubt,” for the Pre-Trial Chamber to confirm the charges there must be “sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.” Thus, there is some merit in claiming that the main difference between the confirmation hearings and the trial itself concerns the threshold used when examining the evidence against the prosecutor’s charges, not the defining purpose of the proceedings, namely to assess the question of guilt in light of the evidence brought forward.

To serve this common objective, many of the mechanisms we know from a trial – such as opening and closing statements, witness’ testimonies and their cross examination – are also used at the confirmation stage, though in a much more restricted way. In part due to these similarities, a confirmation of charges may in the eyes of the public be interpreted as a “near conviction,” even if this is not the intention of the Rome Statute and is not a reasonable conclusion. 

Furthermore, the outcome of the confirmation hearings is likely to have some significant consequences for the six Kenyans appearing in The Hague this month.

For one, it is uncertain whether those of the suspects who hold government posts will be allowed to stay in office should the charges be confirmed. Following the ICC prosecutor’s request that Kenyatta and Muthaura step down from their government post, the Kenyan leadership is now debating what to do should the charges be confirmed against the two. Though not reflecting consensus in these circles, Justice Minister Mutula Kilonzo recently stated that “it is obvious that if the cases at the ICC are confirmed, then the Government cannot sustain the inclusion of the two in Government.” 

It also seems a reasonable observation that the outcome of the confirmation hearings will impact Ruto and Kenyatta’s plans to join the 2012 presidential race.

While supporters of the suspects maintain that they can run for president irrespectively of how Pre-Trial Chamber II rules on the charges, others argue that Kenya’s constitution does not allow somebody charged with a serious crime to be elected for the highest political office.

Leaving aside this dispute about the law, should the charges be confirmed against a presidential hopeful, most agree this will prove a significant obstacle for his way to the State House. After all, attending trial hearings is a time consuming affair, and a charge of crimes against humanity – confirmed by the Pre-Trial judges after a careful review of the prosecutor’s evidence – is not necessarily an asset especially when campaigning in areas hit hard by the post-election violence.

On the other hand, should the judges in Pre-Trial Chamber II decide that there is not sufficient evidence against Ruto or Kenyatta, or both, it is not impossible that the ICC process might actually end up boosting their presidential aspirations.

With the allegations made by Ruto’s defense team that the ICC case is essentially a means of keeping Ruto out of the presidential race and the attempt to implicate Prime Minister Raila Odinga in the case, it seems increasingly clear that neither the confirmation hearings nor potential trial hearings can be conducted in isolation from the political reality in Kenya.

While this linkage to succession politics may increase the risks that some will attempt to manipulate the hearings for political purposes, it also seems true that the narratives from the court room may serve important objectives.

Commenting on the trial of members of Argentina’s junta which ruled the country until 1983, Carlos Nino – a respected Argentinean lawyer and philosopher – suggested that criminal justice was justified, among others, because of the trial’s ability to highlight the scope and nature of the atrocities committed and consequently promote public deliberation on the violence and its causes.

Looking back at the hearings in the ODM case, it seems clear that the hearings, which were followed very closely by the Kenyan media, have promoted an already existing debate about Kenya’s post-election violence and how to respond to it. Whether or not one would agree that the hearings have offered a more accurate picture of the violence and its drivers, this debate may have some value in its own right. For example, the arguments made and the evidence produced by the prosecutor as well as the defense teams in connection to the hearings may lay the ground for a more informed debate around the country concerning how the violence was organized and other important issues. Partly because the Rome Statute allows victims to participate in the proceedings, the hearings may also more broadly contribute to an understanding of victims’ suffering and the measures that can be utilized to remedy this.

Despite the fact that the confirmation hearing is not intended as a mini-trial, the hearings do nonetheless have some similarities with a trial. For sure, the hearings and their outcome will have very significant consequences, not only for the suspects but for Kenya as well. Notwithstanding the importance of understanding these effects of the ICC process, it is also important to emphasize that a possible confirmation must not be confused with a conviction.

A further discussion of the ICC process’ impact on succession politics in Kenya and related issues can be found in the author’s forthcoming article with California Western Law Journal, vol. 42, no. 1, 2011. A draft version is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1898101.