After hearing submissions and evidence from prosecutors, the common legal representative for victims, and defense lawyers, the Pre-Trial Chamber II of the International Criminal Court in The Hague, presided over by Judge Ekaterina Trendafilova on Friday, September 8, 2011 officially closed the confirmation of charges hearing against three Kenyan citizens–Members of Parliament (MP) William  Ruto and Henry Kosgey, and radio journalist Joshua Arap Sang.

The three men are alleged to have played substantial roles in the commission of crimes during the Post-Elections Violence (PEV) in Kenya from December 2007 to January 2008. These alleged crimes include the crimes against humanity of murder, forcible transfer of populations and deportation, which the Prosecutor of the ICC says were aimed at driving supporters of the Party of National Unity (PNU) from the Rift Valley Province of Kenya and making the community a voting block for the mainly Kalenjin tribe and supporters of the Orange Democratic Movement (ODM). All three suspects have said they are innocent.

At the closing of the confirmation of charges hearing today, while prosecutors made emphasis on the need to confirm the charges against the three suspects for the case to go to trial, the defense lawyers for the three suspects argued otherwise.

Prosecution Closing Submissions

Prosecution counsel Ms. Cynthia Tai in her closing submission made emphasis on the purpose of the confirmation of charges hearing and the type of evidence anticipated at this stage of the proceedings, seeking to counter defense arguments that much of the posecution’s evidence had not been disclosed and that those used during the confirmation of charges hearing were not compelling enough.

“This is not intended to be a mini trial. Instead, it is intended to be a filter to determine those cases which should go to trial and those which should not,” Ms. Tai told the judges.

She added that the prosecution has not disclosed most of its evidence because of concerns about the protection of its witnesses.

The question that needs to be asked, Ms. Tai said, was whether the Prosecution’s evidence is sufficient to commit the suspects’ case to trial. She answered the question by telling the judges that the the evidence submitted by the prosecution establishes that Mr. Ruto and Mr. Kosgey created a network, organized series of planning meetings and then implemented the violence in the Rift Valley Province of Kenya. Sang, she said contributed to the crimes through his broadcasts on KASS FM radio which is based in Nairobi.

Responding to defense submissions that the prosecution had used anonymous witnesses to establish their case against the suspects, Ms. Tai argued that the Rome Statute of the ICC permits the use of annonymous witness at the confirmation stage of the case. She also said that having analysed defense evidence, it is insufficient to demonstrate that the prosecution’s evidence has not been enough.

Ms. Tai argued that the statements made by defense witnesses, both type and hand written, seemed very similar to each other and they appear to have been made either on instructions or the witnesses must have collaborated with each other.

The suspects during these hearings have relied so much on alibi in relation to alleged meetings that were held to plan and implement the PEV in Kenya. On specific days that the suspects are alleged to be holding meetings to plan the violence, the defense produced videos to show that the suspects were involved in political campaign rallies at different places. Sang on his part produced photographs to show that he was attending some other events with different people.

Dismissing Sang’s photographs as not authentic considering that they were not even dated, Ms. Tai argued that Ruto and Kosgey had access to helicopters and could have used those to travel in between events.

“These alibis fail, they [suspects] could travel quite quickly,” Ms. Tai told the court.

She argued that the places where the campaign rallies took place were about an hour’s ride from Eldoret, the place were the planning meetings were alleged to have taken place. She said that with a helicopter, one could attend various meetings within a day.

Reacting to defense argument that Ruto called for peace during the PEV in Kenya, Ms. Tai said that these calls came after violence had been perpetrated and that it was done to conceal Ruto’s crimes.

Ms. Tai attacked the credibility of defense witnesses who testified during the confirmation of charges hearing, stating that they are not neutral, they are biased and are all interested parties, having themselves been implicated in the violence in Kenya.

“The Prosecution’s evidence has indeed been consistent…it is sufficient to establish substantial grounds to believe that Ruto, Kosgey and Sang committed the crimes charged,” Ms. Tai said.

“The prosecution requests the Chamber to confirm these charges,” she concluded.

Defense Closing Submissions

The three defense teams made their closing submissions in the manner in which they have conducted their defense, with Ruto’s defense first, followed by Kosgey’s and then concluded by lawyers for Sang.

Ruto Defense Closing Submission

Closing submissions for the Ruto defense were made by Mr. Kioko Kilukumi Musau. In his submission, while stating that the Prosecution had not proved their case against Ruto, Mr. Musau attacked the credibility of the Prosecution’s core witnesses, telling the judges that these witnesses are criminals themselves who have been rewarded with relocation to other countries.

“The core evidence is completely lacking at this stage,” Mr. Musau told the judges.

He pointed that the prosecution’s case rests on the evidence of 4 core witnesses, who he called “self confessed criminals.”

“Their [prosecution] case will fall or stand on those four witnesses…these are self confessed criminals. They have not been punished for crimes they themselves have confessed. Instead. they have been compensated by relocation to other countries with higher income,” Mr. Musau said.

He urged that judges to “use utmost caution, utmost care and circumspection” in deciding whether or not to confirm the charges against Mr. Ruto.

On Ruto’s defense of alibi, in response to prosecution submission that Ruto and Kosgey had access to helicopters and could have used them to travel between violence planning meetings and campaign rallys, Mr. Musau submitted that there is no evidence to suggest that Ruto arrived at and left the campaign rallys with a a helicopter. He said that the prosecution should have taken the helicopter logs to ascertain this since the burden lies on them to prove their ascertions.

“All fundamental features of the prosecution’s case have been completely wiped out,” Mr. Musau emphacized.

The prosecution’s evidence is supposed to be “concrete and tangible,” but has rather been “flimsy and paper weight,” Mr. Musau said.

The defense counsel also submitted that the prosecution had proved they did not believe in their own witnesses. He specifically referenced the evidence of Prosecution Witness No. 6 who drew a chart of the command structure during the violence in Kenya in 2007-2008. According to the witness, area commanders reported to Ruto and Kosgey who in turn reported to current Prime Minister Raila Odinga. The prosecution in their closing submission said they had no evidence to believe that Mr. Odinga was involved in the violence.

This, Mr. Musau said meant “the prosecution did not believe in its own witness and its own case.”

He accused the prosecutor of travelling to Kenya and obtained reports prepared by Human Rights Watch, the Commission into the Post-Election Violence in Kenya and the Kenya Human Rights Commission report. The witnesses who spoke to these entities have given different accounts to different actors and these are the people the prosecution now relies on to bring charges against Mr. Ruto, Mr. Musau argued.

While acknowledging that crimes were committed in Kenya within the relevant period, Mr. Musau said that there is no nexus between those crimes and Mr. Ruto. He said that the victims of crimes deserve justice but that does not mean Mr. Ruto deserves injustice.

Mr. Musau concluded by calling the prosecution’s case a scheme to keep Ruto out of the presidential elections that will take place in Kenya in 2012. He urged the judges not to confirm the charges against Ruto.

Kosgey Defense Closing Submission

Mathew Ryder QC made closing submissions for the Kosgey defense team, following the line of discrediting the prosecution’s evidence as a fellow member of his team, Goerge Oraro had done in making his opening statement.

Mr. Ryder pointed out the only witness, “Witness No. 6” on whom he said prosecutors had relied to bring charges against Mr. Kosgey. He called Witness 6 an anonymous and unreliable witness whose evidence had contradicted the accounts given by other prosecution witnesses. He urged the judges to accord a low probative value to the evidence of this witness.

Mr. Ryder argued that the role ascribed to Mr. Kosgey by Witness 6 is inconsistent with other witnesses and the same witness mentioned Prime Minister Raila Odinga as head of the chain of command, which prosecutors themselves have denied by saying they have no evidence to believe that Mr. Odinga was involved in the commission of the crimes.

Mr. Ryder argued that confirming these charges against Mr. Kosgey could have some implications for the Court. These, he said, include:

1. It impacts on the necessary standard needed to confirm charges against suspects, which is a critical function of the Court;

2. The important role of the Pre-Trial Chamber of the Court as a filter to determine cases to go to trial will be undermined.

Sang Closing Submission

Sang’s defense counsel, Mr. Joseph Kigen-Katwa submitted that the prosecution’s evidence should not be relied on to confirm charges against Mr. Sang. Mr. Katwa argued that there was a ban on live radio broadcast in the whole of Kenya from December 30, 2007 to January 3, 2008 and while the prosecution has alleged that Sang violated the said ban and made comments/broadcasts which incited violence, they have not disclosed any transcripts to establish that this happened. The only transcripts of radio broadcasts that prosecutors have disclosed date from January 18, 2008. These, he said, do no implicate his client into any violent conduct.

Mr. Katwa argued that there is “no nexus between Sang and any common plan if it existed,” and that “there is no proof of intentional contribution to any criminal scheme.”

He submitted that the prosecution did not investigate facts, and they did not investigate the likelihood that their witnesses had been induced to fabricate evidence.

An EMO Bank that prosecution witness spoke about as having existed to raise money for planning the violence in Kenya did not exist and the evidence that Sang participated in several preparatory meetings is false, Mr. Katwa submitted.

He also described the witnesses as annonymous and self confessed criminals whose evidence is not corroborated and have contradicted eachother.

Mr. Katwa urged the Chamber not to confirm charges against his client based on such evidence.

Common Legal Representative for Victims

Earlier, the Common Legal  Representative for Victims Ms. Sureta Chana made closing submissions on behalf of 327 victims of the violence in Kanye who have been granted participatory rights in these hearings. In her submission, Ms Chana said that she did “not wish to stray into territory that is the function of the prosecution or defense” but wished to convey the concerns of the victims to the Pre-Trial Chamber.

She highlighted the culture of impunity and the climate of mennace as issues of concern to victims in Kenya. She said that victims shared the view that the Post-Elections Violence in Kenya was  not spontaneous but was planned over a period of time. She referenced a victim who had being a victim of violence in previous elections and again became a victim of the violence after the December 2007 elections.

“The repetition of the cycle of violence” is what victims are concerned about, Ms. Chana told the judges.

Ms. Chana highlighted to the judges that all parties to the proceedings, along with defense witnesses have established that crimes were committed in Kenya in December 2007 to January 2008 and these, all parties agree had serious impact on victims.

Of serious concern to victims is the fact that they still continue to face threats while these proceedings are taking place. Ms. Chana read an email that she had just received from one of her field officers in Kenya indicating that a Kenyan Member of Parliament who is presently in The Hague witnessing the confirmation of charges hearing had called KASS FM in Kenya and threatened witnesses. In the said email, it is alleged that Member of Parliament Charles Keter in his phone call to KASS FM said that the charges against Ruto, Kosgey and Sang were mere falsehoods fabricated by PNU supporters and human rights organizations, and that the identities of the prosecution’s witnesses were already known. Mr. Keter allegedly said they were aware of who the traitors were and that the Kenyan Prime Minister raila Odinga was the one providing safe haven for these witnesses. The Member of Parliament allegedly said that the people of the Nandi tribe were the ones betraying the Kalenjin community and that they will face unspecified consequences.

“We will give them the treatment deserved by traitors,” Mr. Keter is alleged to have said.

Ms. Chana said that the confirmation hearings were therefore a source of optimism for victims who had doubts about whether powerful people could be held to account.

Ms. Chana urged the judges to consider using their powers to consider crimes of destruction and burning of property, looting and inflicting injury on persons.

“There is a compelling case for the Chamber to exercise that power,” Ms. Chana said.

She added that the victims will be seeking reparations for these acts.

Before bringing the confirmation hearings to a close, Presiding Judge Trendafilova informed the parties that they had the option of making written submissions to the Chamber but such submissions should only deal with issues relevant to the case and those which have been discussed during the confirmation of charges hearing.

Any new issues that are added in these written submissions will not be considered by the Chamber, the presiding judge warned.

The Chamber will again resume on September 21, 2011 to commence confirmation of charges hearings against three other Kenyan suspects, Francis K. Muthaura, Uhuru Kenyatta and Mohamed Hussein Ali.