The presiding judge of Pre-Trial Chamber II at the International Criminal Court (ICC) has cautioned a defense lawyer and a witness in a case facing three Kenyan figures against misconduct.
Judge Ekatarina Trendafilova made the statement after a defense witness finished his testimony on Saturday, during the third day of hearings aimed at helping the chamber filter the prosecution’s evidence against three Kenyan figures and determine whether it is sufficient to go to trial with. She cited parts of three articles in the ICC’s Code on Professional Conduct for Counsel and asked defence lawyer Joseph Kipchumba Kigen-Katwa to provide the witness’ statements as soon as possible.
The witness, Henry Kiptoo Murei, had told the chamber on Saturday he had written a statement in his own hand and signed it before Kigen-Katwa early this year. Murei said that later Kigen-Katwa presented him with another prepared statement that he also signed. It is these statements that Judge Trendafilova wants given to the chamber.
Murei was the second witness to testify on Saturday and had been called by the lawyers of former Kenyan Higher Education Minister William Samoei Ruto. Ruto, together with former Industrialisation Minister Henry Kiprono Kosgey, and prominent radio broadcaster Joshua arap Sang are suspects in one of two cases the ICC prosecutor has prepared against Kenyan figures. The prosecution wants Ruto, Kosgey, and Sang charged with three counts of crimes against humanity each.
Earlier, a former chief of the Kenyan president’s security told the chamber he never hosted meetings or distributed arms before or during the political violence that took Kenya to the brink of civil war in early 2008.
In its presentation Friday, the prosecution had named Samson Cheramboss, who served as the head of presidential security in the 1990s, as one of three individuals who were commanders of a military wing that Ruto allegedly supervised.
Ruto’s legal team called Cheramboss to testify Saturday in support of their assertion that Ruto was not the leader of “a network of perpetrators,” nor did he supervise a military wing.
Cheramboss, who served in the Kenya police force for 37 years, said he only saw Ruto once during campaigns ahead of the December 2007 General Elections. At the time they did not talk, Cheramboss told judges of Pre-Trial Chamber II. More than a year later, after the election and violence in which more than 1,000 people died ended, Ruto visited the Cheramboss home, the former police officer said. Cheramboss also said he was not involved in any distribution of arms before or during the violence that occurred between December 2007 and February 2008.
“No meeting was ever held at my place at my house in December as alleged,” Cheramboss said. “I don’t remember attending any meeting with Hon. (William Samoei) Ruto or Hon. (Henry Kiprono) Kosgey.”
The prosecution alleges some meetings to organize attacks in the Rift Valley region during that period took place in Cheramboss’ house and Ruto and Kosgey participated in those meetings. The prosecution also asserted that Cheramboss took part in meetings held at Ruto’s house. On Saturday, Cheramboss said he had never been to Ruto’s house, and he lives about 130 kilometres away from Ruto.
Part of Cheramboss’ testimony was made in a private session closed to the public because lawyer Kigen-Katwa, representing Sang, had some questions touching on confidential information.
Later in the day, Ruto’s lawyers called Murei, also known by his clan or family name Kabasorwa. Murei, a farmer, is currently serving as the chairman of the peace committee in Eldoret West District, which is part of the constituency that Ruto represents in the Kenyan National Assembly.
Murei, who said he lives about 100 meters away from Ruto’s home in Eldoret town, told Pre-Trial Chamber II that he is only aware of four meetings held in Ruto’s home before the December 2007 elections and those related to the campaigns. He said he participated in all those meetings, and he did not see any arms being distributed.
“During the four meetings that were held in the home of Mr (William Samoei) Ruto I did not see (Samson) Cheramboss and I was there,” Murei told the judges. “I am telling this court that there were no weapons that were distributed.”
Both Cheramboss and Murei held the view that the violence that erupted in late 2007 was spontaneous and was a response to the botched presidential result. The hearings continue on Monday.
While I have been critical of the legal strategy chosen by the defense in having the defendants, William Ruto and Joshua Sang to address the court, it is noteworthy that they presented themselves well. In their introduction to the court, Ruto, Henry Kosgey and Sang were articulate and presented the necessary subdued demeanor anyone would expect from anybody facing accusations of crimes against humanity. The defense’s witnesses also presented well, even though at times former GSU Commandant Samson Cheramboss came across as combative– almost defensive. I still do not understand the wisdom for the defense using defendants Ruto and Sang as their own character witnesses and having Cheramboss, a person vastly mentioned as a non-accused co-conspirator as a defense star witness. In doing that the defense showed deference to the accused and demonstrated that they had not separated the accused from their prominent positions in Kenya where they’re held in high regard as leaders (mheshimiwa) and their place in court as people accused of the worst crimes in Kenya’s history.
Obviously the defense did not play its end game, but the idea that having Ruto and Sang present an emotional statement on the stand would sway the judges was very naïve, almost laughable. They’re the accused, their words represent nothing but a natural self-interest of beating the rap. The defense’s adopted meme that ICC prosecutor’s argument lacks depth and is based on hearsay and urban myths is dumb and I suppose would not last. Imagining that prosecutor Luis Moreno Ocampo did not double-check his allegations is a perilous move that if proven in favor of the prosecution could prove devastating for the defense. In choosing to attack the prosecution’s case in such absolute terms such as statements by Cheramboss that he has never been to Ruto’s house could cause a major setback to the defense if proven false. By choosing an all-or-nothing approach, the defense may burn some of its star witnesses if their testimony crumble on cross-examination and undermine credibility of their defense.
Already there is evidence of inconsistency. Presiding Judge Ekaterina Trendafilova warned the defense against misconduct after the defense failed to present a handwritten signed statement from one of its witness Henry Kiptoo Murei and presented one which was typewritten and signed by the witness. Judge Trendafilova noted the inconsistency and ordered the defense to file both statements. It’s possible that both statements are Murei’s accurate accounts, but existence of two signed statements creates an impression that the defense attempted to sanitize a witness’ statement and supports the prosecution’s argument that defense lawyers are coaching their witnesses.
In the end the defense success lies in proving the violence in Rift Valley were spontaneous and the accused played no role whatsoever in using language that could be construed as inciting violence. Kosgey’s lawyer John Oraro seem to have adopted the best strategy so far. By questioning the existence of the “network,” which allegedly organized the violence, Oraro attacked the stem of the prosecution case. Oraro also threw in the mix the possibility that the prosecution may have the wrong Kosgey on the dock. He argued that there are several other prominent Kenyans with the same name who could have easily been the subject of conversation during the evidence gathering process.
Full disclosure: This opinion also appears on my blog http://www.polytixx,com
Who is the intended audience for this website? As fas as I can see, it simply produces summaries in the same sort of non-analytical way as, say, the Daily Nation or The Standard, and missing very important key points. Indeed, for much of what has been written the reader would be much better simply reading filings at the ICC website.
All this is especially disappointing since some of the writers appear to have legal expertise. If the website is meant for other legal experts, then it clearly falls short. If it is meant for the “layperson”, then the legal experts should consider going beyond a simple presentation of obvious facts to, say, informal (but clear) discussions of implications with respect to legal aspects that the ordinary reader would not ordinarily grasp readily.
Dear Charles,
Thanks for the feedback, and you make good points. We are trying to produce a solid objective summary for someone who doesn’t have time to either read the filings, or follow minute by minute coverage, and to explain key legal issues when they come up for an educated lay audience (so far the pretrial hearings have been fairly straight-forward).
We don’t want to speculate about whether a particular argument, witness or piece of evidence will, or will not, carry weight with the court (or with the audience in Kenya).
Best wishes, Jonathan Birchall, Senior Officer Communications, Open Society Justice Initiative
The International Community should see, through the eyes of the ICC, what ordinary Kenyans are going through under the govervnance, administration and leadership of the kind they are listening to, who were all in positions and are now suspects in ICC.
Ordinary Kenyans have been, and are still in very strange, discomfited and hard-times situations in their lives, because of impunity perpetrated by by government officials.
Lets justice take its course for if the big fishes always swallow the small fish in the sea. Here in Kenya same thing as in the sea.We had many cases of corruption from our leaders but non of them is conficted or jailed for wrong doing but our jails are full of poor people who can not meet bill fine of USD.5 at any given time for petty cases.lets imagine inocent wemen and children who were killed and others desplaced and upto now they dont have a place to call home after 4 years upto now.they spend cold nites out there no food,no toilets,water,health care and even now prices of all foodstaff is trippled.and may some heardly earn USD.0.50 per day or nothing at all while these leaders goes arround the country with coppers and big cars earning USD 12,632 un taxed salaries .this is exclusive of allowances and so on.
please ICC let see victims have a smile in their faces .