Defense comments to the amended charges document give early indications about what strategy they will adopt to argue their clients’ innocence in their case at the International Criminal Court (ICC).

Trial Chamber V directed Prosecutor Fatou Bensouda in July to amend the document containing the charges to reflect the January majority decision of Pre-Trial Chamber II that confirmed crimes against humanity charges against two out of three suspects.

Former Cabinet Minister William Samoei Ruto and radio journalist Joshua arap Sang have regularly claimed their innocence in the violence that nearly tore Kenya apart after the December 2007 presidential poll, which forms the basis of two cases at the ICC.

The prosecution has retained the three charges of crimes against humanity against Ruto and Sang. The prosecution has also not changed the location of incidents and the outlines of the alleged crimes as per the majority Pre-Trial Chamber decision.

The major change is the removal of any reference to Industrialization Minister Henry Kiprono Kosgey whom the prosecution had wanted charged alongside Ruto and Sang. Pre-Trial Chamber II concluded that based on the material the prosecution presented there were no substantial grounds to charge Kosgey. The Chamber directed that he no longer be part of the case, which is the first of the two Kenya cases at the ICC.

This decision may mean the prosecution will have to strengthen the evidence it has collected against Ruto. Until the January 2012 decision, part of the prosecution’s case was that Ruto is the alleged leader of the Kalenjin people and Kosgey was his deputy. The prosecution’s claimed that they allegedly worked together planning, financing, and organizing the violence in the North Rift region where Kalenjin supporters of the Orange Democratic Movement party attacked Kikuyus, Kambas, and Kisii who were perceived to be supporters of the rival Party of National Unity of Kenya between December 2007 and January 2008. Now, the prosecution has to abandon this line of argument that Ruto and Kosgey worked together.

A group that may be affected by this decision are the victims represented in this case. The prosecution had alleged that in Nandi District of the North Rift region, Kosgey had met with the alleged local commanders and perpetrators to plan attacks in the towns of Kapsabet and Nandi Hills. If the prosecution’s case succeeds but fails to prove the crimes committed in Nandi District, the victims of that violence may not be able to claim reparations.

For their part, the defense teams of Ruto and Sang argue the prosecution has introduced factual assertions into the amended document containing the charges that the Pre-Trial Chamber did not explicitly state had been sufficiently substantiated.

They raise 28 such points in an annex of observations on the amended document containing the charges. The prosecution, in its response, disagrees, mostly arguing that what it has done does not “modify or exceed the scope of the charges.”

The defense further disagrees with how the charges have been formulated. It objects to the use of the word “including,” especially as concerns the locations of the alleged incidents because it fears such a word could amount to the prosecution expanding the parameters of its case. The defense also wants names that had been included in an earlier document, but later removed in the amended charges document, be reinserted. The defense argues that as these individuals are alleged to have been part of what the prosecution characterizes as “The Network,” which is a key component of the prosecution’s case, then their names should remain as part of the amended charges document.

Another matter that occupies the defense is the characterization of their clients as key members of Kalenjin society by the prosecution. Ruto is described as the crowned or anointed leader of the Kalenjin in the amended charges document, which the defense disputes. Sang is described as a leading Kalenjin broadcaster who was uniquely situated to broadcast to the Kalenjin community in the amended charges document. The defense disputes this, arguing the Pre-Trial Chamber did not find Sang held a unique position at his station, Kass FM, or as a Kalenjin.

Aside from simply arguing their clients’ innocence, it seems the defense will be seeking to show their clients’ did not hold the status, power, or influence the prosecution claims to be able to plan, organize, or finance the violence in the North Rift region. It also seems that they will argue that no such thing as “The Network” existed because the prosecution has failed to show who else was involved in “The Network.”

This is the outline of an early tentative defense strategy based on their observations of the amended document containing the charges. The prosecution is in the early stages of disclosing the evidence it has against the accused persons. It is only when the defense receives all that evidence that it will develop a clear strategy to argue their clients’ innocence.