ICC: I Still Don’t Understand Ekaterina and Cuno Rulings!

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.


9 thoughts on “ICC: I Still Don’t Understand Ekaterina and Cuno Rulings!

  1. Oliver, on what you are calling a stupid question or stand, UK’s lead lawyer Steven Kay articulated it very well in one of his submissions. That the prosecution was opposed to termination of his case despite withdraw of all witnesses and recanting of testimonies for the simple reason that it will cause a political problem since the cases were founded on a political equation and not evidence.

  2. Pingback: ICC: I Still Don’t Understand Ekaterina and Cuno Rulings! | nyamareroy

  3. I think the problem with you Oliver…. You are PRO UHURU, so you cannot in anyway think objectively…. that’s why you are having a problem understanding the ruling, the other week you were sure that these cases will not go to full trial, but there wasn’t much substance in what you were saying.

      • That’s your line of defense, that since the process started you’ve been criticizing the process…..? Then why is it that the other day you put-up a post on your facebook and twitter-handle that, whatever you post on social media is but your opinion and not your employers? Dude, there are alot of people who can read in-between the lines, and know of your associations with ‘team uhuru’…. and its only a matter of time before its out there in the open!

        • Hahaha.. I like your naivety… Just go through this blog and you will know my thinking on the whole issue. That particular tweet had nothing to do with politics but a personal matter that someone was using to tarnish my name.
          And please learn to refrain from making such unfounded claims. That’s a dangerous path to trend. Argue on the substance of the issues presented if you want to be taken seriously!

          • I have already read your blog! And I can see you have covered your tracks pretty well, so that one will not see what your doing right now in that light, but don’t be fooled! There are those of us who can read in between the lines!

  4. I am still insist that ICC is a political court perpetuating the very impunity they are trying to stop. In my understanding anonymous can mean anything including the imaginations of the prosecutor or worse still street rumors. Despite the legal leeways, a good judge should be careful rest the prosecutor leaves you with lots of egg in the face. Vital evidence in Muthaura case is instructing police commissioner not to interfere with Mungiki gang. When Ali and in extension the police is cleared it removes state protection as evidence thus making it impossible to proceed with Muthaura and Uhuru’s case. It reduces Mungiki to a mere street gang. Thanks

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