May be I am stupid or may be it’s just because I am not a lawyer. But the January 23 rulings on the Kenyan case still do not make sense to me! I am still trying to figure out their merits, as seen by the two judges, and even have doubts whether the two cases can go past the Appeal stage.
To begin with, I don’t act for the defence and agree with Judge Kaul that indeed heinous crimes were committed during the post-election violence and must be punished. My critic of the ruling is based on my own perception as I see the cases collapsing, as I have argued before, and little else can be done thereafter to bring the culprits to justice and compensate the victims.
Having read the rulings for professional and other purposes, I am left with questions that, may be, only the judges can answer but will still ask them. They may sound lame but in my opinion, I find them leading to an injustice on the part of the Ocampo Four and denying the victims the much-anticipated justice.
First, I am wondering why Judge Cuno diverted from his findings in the Mbarushimana case where he gave lower probative value to the evidence of anonymous witnesses. Did he all over a sudden change his reading of the law?
Secondly, the prosecutor argued and presented evidence that Mungiki in conjunction with the police formed the organisation (as defined by the Rome Statutes) for which he wanted Uhuru, Muthaura and Ali charged. The judges then removed the police aspect. How then does the remaining part (Mungiki) become the organisation without the prosecution losing a key aspect of its argument? So how did the Mungiki manage to move around so freely in an environment that was in high security alert?
Third, I am yet to comprehend how and why the two judges chose to believe anonymous prosecution witness even when live witnesses by the defence contradicted the same. Since when did the burden of proof at the confirmation of charges shift to the defence instead of the prosecution? Doesn’t this go on to show that Ocampo really didn’t investigate exonerating evidence?
Fourthly, As per the judges, only one witness claimed that Kosgey was part of Ruto and Sang’s network and thus the dismissal of his charges. This then raises the question whether the network really existed in the first place. If Kosgey was not in the said meetings, what makes the judges believe that Ruto or Sang were also in the same meetings?
My last question has to come from a rather naive and probably stupid stand. Must there have been an equal number of suspects in each of the two cases? Doesn’t this go to concrete the perception that ICC is a political court especially with the utterances of the Prosecutor?
Even as I hope and pray that the ghosts of post-election violence will be dealt with and justice prevails, I am doubtful given the issues raised above that the end of ICC will be what we are hoping for.