In less than two months, Kenyans will know whether two cases on the 2007-2008 post-election violence will go for trial or not. Having closely followed the confirmation of charges hearings and the subsequent submissions by the various parties, I am convinced that the ICC is not ready to let the Kenyan cases end yet.
Not that it would be the right thing to do or not to, but my take is that the charges bought up by Ocampo on the six Kenyans will not be rejected come January. My hunch is that the Pre-Trial Chamber II judges are grappling with whether to confirm the charges as they are or take a safer option of asking Ocampo for more evidence and to amend the charges.
Even without legal training and looking at other cases before the court, one can tell that both the prosecution (with the aid of the victims’ representatives) and the defence put up very spirited arguments before the court. It is therefore hard to make a call on the cases but all indications are that the ICC has a large appetite for the Kenyan case.
The rejection of the government’s request for a deferral and access to evidence points to the determination for the ICC to have the cases move to the next stage.
The prosecution has put up good cases given the low threshold for the confirmation hearings and could be holding on to very key evidence that it probably hopes will lead to convictions. The defence, on the other hand, has done a good job in tearing into the prosecution cases, leaving some with doubts on whether Ocampo really conducted investigations.
My own analysis is that Ocampo would need more evidence to convince the judges to convict any of the suspects if the cases head to trial. There appears to be large gaps in his anonymous witness statements that contain numerous contradictions and even lack corroboration
Confirmation of the Kenyan cases will be a great PR exercise for the ICC and especially for the prosecution. It will boost the court’s standing especially among its largest sponsors in the Western nations and probably enhance its credibility.
On the flip side, confirming the cases with the existing doubts on credibility of prosecution witnesses and evidence could dent the court’s standing given the political nature of the Kenyan cases. It could enhance the arguments, especially from Africans, that the court is holding brief for the West.
If it is indeed true that some of the prosecution witnesses were extortionists or their statements were out of hearsay, confirming the cases would leave the judges having shot themselves in the foot as it would be an injustice to the suspects. Throwing the cases out would be of the same effect as the court would not be seen to be helping fight impunity in Kenya and helping the victims get the elusive justice.
The outcome of the Kenyan cases will be a big deal for the court and the country as well and January 19, 2012 will be a historic day for the two entities. As we wait for the case, you can in the meanwhile take the poll below.