Key ICC Hearing Into Kenya Post-Election Violence To Open

Judges to Consider Charges of Crimes Against Humanity for Ruto, Kosgey and Sang

Today, 1 September 2011, Pre-Trial Chamber II (PTC II) of the International Criminal Court (ICC) will open a key hearing in the case against William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang for their alleged role in crimes against humanity committed during post-election violence in 2007-2008 in Kenya. The purpose of the confirmation of charges hearing is for judges of PTC II to determine whether the case against the three suspects can be sent to trial. The confirmation of charges hearing in the case against Francis Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali is to begin on 21 September 2011. 

Ruto, a suspended government minister and deputy party leader of the Orange Democratic Movement (ODM), and Kosgey, a current member of parliament and chairman of the ODM, are suspected of being indirect co-perpetrators in the commission of the crimes against humanity of murder, forcible transfer of population and persecution during post-election violence in Kenya in 2007-2008.

Sang, the head of operations at a radio station in Nairobi, is suspected of having ‘otherwise contributed’ to the commission of the abovementioned crimes.

During the hearing, the ICC prosecutor is required to support his charges with sufficient evidence. The suspects will have the opportunity to object to the charges and challenge evidence through their respective defence counsels.

Each suspect is allowed to call a maximum of two witnesses for their defence. The views and concerns of 327 victims are to be presented during the proceedings through their legal representatives. 

The chamber is expected to take a decision within 60 days of the hearing’s closing. The judges of PTC II can confirm the charges and send the case to trial; reject the charges, or request the prosecutor for additional information.

PTC II is composed of judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser.

“These hearings, irrespective of whether the judges decide to send the case to trial, illustrate how international justice is entrenching accountability and justice for victims of the most serious crimes,” said William R. Pace, convenor of the Coalition. “The Rome Statute guarantees these suspects rights such as the presumption of innocence and the right to fair and independent proceedings,” he stated. “It is crucial that the Court take steps to dispel the idea prevalent in certain sections of Kenyan society that the suspects are being unjustly targeted by the Court,” Pace said. “To this end, it is vital that the ICC is given sufficient resources to provide reliable factual information about its activities and manner of working.” 

“The confirmation hearings constitute a first in the struggle against a culture of impunity in Kenya, most recently related to electoral violence, which has detrimentally undermined respect for the rule of law and brought victims to despair,” said Atsango Chesoni, executive director of the Kenya Human Rights Commission.

“Never have such high-level alleged perpetrators faced the prospect of trial,” he stated. “The importance of the ICC processes in restoring the faith of the Kenyan people in the possibility of justice cannot be overstated. They need to see and understand that it is possible to hold people to account while respecting the human rights of both victims and suspects,” explained Chesoni. “At the same time, given the grim legacy for whistleblowers in Kenya, there is an urgent need to strengthen witness protection mechanisms in order to address lingering fears about participation in the justice process.”
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The ICC prosecutor’s investigation into crimes against humanity allegedly committed in Kenya during the 2007-2008 post-election violence was authorized by judges of PTC II on 31 March 2010, following a request by the ICC prosecutor on 26 November 2009.

It was the first time the prosecutor initiated an investigation on his own accord (“propio motu”), without first having received a referral from governments or by the United Nations Security Council.

On 8 March 2011, PTC II issued summonses to appear for Ruto, Kosgey and Sang, as well as for Muthaura, Kenyatta and Ali, in relation to their alleged roles in the 2007-2008 Kenyan post-election violence, and they made their initial appearance before the ICC on 7 and 8 April 2011 respectively.

On 30 August 2011, the ICC Appeals Chamber confirmed the admissibility of the two cases in the Kenya situation, rejecting the challenges of the Kenyan government.