When ICC judges ruled against an application by William Ruto, a lot of us got it all wrong as the media interpreted it as a rejection. But a keen eye could have seen that the ruling was an indication of the lengthy process that awaits the Ocampo six and the entire country.
The judges said that as one of those under investigations, the Eldoret North MP did not qualify to make such an application. Their ruling said, among other things; “The only communication envisaged at this stage is conducted between the Pre-Trial Chamber and the Prosecutor.”
The Pre‐Trial Chamber judges could reject Mr Moreno-Ocampo’s request to issue summonses to appear, approve it or transform it into an arrest warrant. In assessing the prosecutor’s request, ICC judges may also request more evidence or clarification from the prosecutor.
If the evidence submitted is insufficient, ICC judges will decline to issue either a warrant or a summons. The prosecutor has the right to re-apply if he submits new evidence.
Summonses will be issued if judges are satisfied that a suspect will appear voluntarily. If that is not the case, the court will issue arrest warrants.
If the chamber agrees with the request, the six individuals identified will go to The Hague to make their initial appearance before the judges.
After an initial hearing, a confirmation of charges hearing takes place. This is the stage where the judges review the evidence and decide whether it is enough to proceed to trial.
The six individuals can be represented by their lawyers and present their side of the story. Within a reasonable time before the hearing, the persons named are to be provided with a copy of the document containing the charges and be informed of the evidence on which the Prosecutor intends to rely at the hearing.
Before the hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges but has to inform the named individuals. This explains the reason why Ocampo has been asking for exonerating evidence from some of the six individuals and seeking statements from security chiefs.
At the hearing, those on the prosecutor’s list may object to the charges, challenge the evidence presented by the Prosecutor; and also present their own evidence. The judges will then make their decision. They can confirm the charges and send the case to trial or amend or reject the charges.
According to ICC procedures, there is no time-limit within which ICC judges must decide on the prosecutor’s request for the six summonses. So even the March 2011 date that we have been talking about was just picked from Ocampo’s statement when he came to Kenya in December.
And just like he said that he expects the charges, if the judges issue the summonses, may be confirmed in late 2012 or early 2013.
It is therefore even laughable that people still refer to the Ocampo six as suspects while they have not even been interdicted. Just the same way it is ridiculous to demand that they leave public office and they have not even been charged.
And still you cannot block them from running from public office. The Constitution only bars someone who has been convicted from serving a prison term.
So there you go, something about the ICC that you may never see anywhere in the mainstream media.