Reports Leo Odera Omolo

Kenya’s first three high profile suspects appearing before International Criminal Court got a stern warning they risk arrest if they sustain statements that may trigger fresh violence back home.

In nearly all major towns throughout Kenya hundreds of thousands of Kenyans remained glued on their Television sets in hotels, restraints,social halls, bars and at home, keenly watching the unfolding events at The Hague during the opening of the criminal cases against the first batch of three of the six suspects, who are facing various criminal charges before the International Court of Criminal of Justice.{icc}

The Kenyans, who included the head of public service, three cabinet ministers, a former commissioner of police and a vernacular radio presenter are facing charges of committing crimes against humanity, causing violence and displacement of thousands of citizens as well as the deaths of close to 1300 in 2008 when violence and mayhem erupted throughout the country following the disputed presidential election of December 2007.

The warning, however, brusque as it was, came without names and was founded on Kenya’s media reports seen by ICC. It was also the day the long and circuitous five-month process went to the next phase, out of probably years if it goes to the trial stage, began with the suspects bracing for what could literally be the battle for their lives and careers. The sombre mood in the courtroom, at least for the suspects sprung from the fact that the charges read to them fell in three categories: murder, forceful evictions, and persecutions of fellow Kenyans. They all related to the wave of post-election crimes in Uasin Gishu and Nandi.

It was the first time, before a formal sitting of the court that the Kenyan suspects were coming face to face with the ICC judges and Chief Prosecutor Luis Moreno-Ocampo.

The court also set September 1 as the day Eldoret MP, William Ruto, Tinderet MP, Henry Kosgey and Kass FM radio presenter Joshua arap Sang would know from the judges if the case against them by the prosecutor would go to full trial. They must attend this session in person, where, if it is ruled they must stand trial, and then they would be handed over to a new set of ICC judges.

The court also set April 18 as the day when the prosecution and defence teams will meet to ascertain the status of the process culminating in the confirmation phase on September 1.

In between now and then, the prosecutor is obliged to share the evidence he holds against the three with defence lawyers.

Fresh violence

The three, who will be followed in appearance before ICC today by Uhuru Kenyatta, Francis Muthaura and Hussein Ali, became the first Kenyans citizens to appear before ICC to be read charges of crimes against humanity.

“It came to the knowledge of the Chamber by way of following some articles in the Kenyan newspapers that there are some movements towards triggering fresh violence by way of using some dangerous speeches,’’ said the presiding judge of Pre-Trial Chamber II Justice Ekaterina Trendafilova.

She then threw in the warning to the politicians who have appeared in pre-ICC rallies and prayer sessions.

“I would like to remind the suspects — and I’m not referring to anyone in particular but this is a general point to be made to all the suspects — that such type of action could be perceived as a sort of inducement, which may constitute the breach of one of the conditions set out in the summonses to appear: Namely, to continue committing crimes within the jurisdiction of the Court. Accordingly, this might prompt the Chamber to replace the summonses to appear with warrants of arrest…” she said.

Judge Ekaterina Trendafilova, Presiding Judge at the initial appearance of William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang before the ICC on April 7. 2011.

The sitting arrangement, like that of local courts had the four traditional sitting formation of sitting pews: Defence, Prosecution, Registrar’s or court officials, the Judges’ Bench, and the Public Gallery.

Burden of proof

The prosecutor bears the burden of proof, as the defence teams fight the claims against their clients. The judge(s) constitute the final arbiters, and the public stand witness to the wheels of justice.

Yesterday and today’s cases however, as the judge said at the outset, were not sessions during which a ruling was expected or where evidence would be adduced.

Ruto and Sang appeared to be navigating in strange waters when they jumped the gun and prematurely sought to clear their names at the stage where they were to be identified, read their rights, and allow court to ascertain if they have been adequately briefed about the allegations against them.

Kosgey, however, was more guarded, and even after the appearance, he merely said he was anxiously waiting to be told the allegations against him so that he could clear his name.

Ruto, however, was fiery against the court, which had started by reprimanding the three for being late by three minutes, and was quoted by Associated Press dismissing the case against him as “balderdash”.

He also gave the analogy of a movie or cinema in and outside court to support his argument the charges read to him were fictitious and mythical.

“The allegations that have been made here … can only be possible in a movie,” said Ruto, in court. He added: “For an innocent person like me to be dragged all the way here is a matter that puzzles me.”

His wife Rachel and daughter accompanied Ruto. Kosgey’s son was also in his father’s defence team. Once the court session and in complete disregard of court protocol, Kenyan politicians who had accompanied the three held news conferences, donning the national colours, at which they sustained their anti-ICC tirade and made political inferences against the charges against the Ocampo Six.

They also declared they would hold a welcome rally for the six once back home, despite the warning by Justice Trendafilova to avoid political statements that could precipitate renewed tension.

At the court Ruto, Kosgey and Sang showcased their defence teams, called out to their names, and made short statements regarding who they were, where they were born, and what they do for a living. It was during this session that Ruto and Sang overstepped the questions they had been asked by the Judge and the agenda of the day to venture into their innocence.

Ruto wondered who his accusers were; said it was unfair for him to have been brought all the way from Kenya to be read false accusations. He was, however, asked to take his seat by the Judge.

Accusations

Sang described himself as ‘innocent journalist’ and told Justice Trendafilova he had not been interrogated by the prosecutor and criticised the charges against him.

Sang, like Ruto, was cut short by the judge with the restraint there would be time for those kinds of arguments and presentations.

Unlike in political arenas where politicians take the front positions in the high table, it was a different experience for Ruto and Kosgey. They took the back seats, right behind their defence teams. The three incidentally were behind Ruto’s lawyers, while their own were in different wings of the courtroom.

The Chamber assured the process would be expedited, and also promised the suspects they would be given sufficient time and facilities to prepare their defences. They were also informed the September 1 verdict could terminate or carry on the cases against them.

The judge also told them she knew well the ‘psychological burden’ the cases and summonses have on the suspects. But it was a departure from tradition for the judge to warn the suspects they risked arrest warrants even before ruling on the application of stringent conditions Moreno-Ocampo sought on Wednesday against the six.

When he left the court, Ruto declared: “My conscious is clear, and my soul is at peace that I never committed these crimes.”

Ruto said accusations against him are absurd, adding that he was praying for justice.

“To say I distributed 3,000 guns is absurd. We will be given the names of the accusers and their statements. But the truth will come out finally,” he declared.

The chamber is composed of Justice Trendafilova, Justice Hans-Peter Kaul, and Justice Jakob Tarfusser.

Justice Trendafilova informed the suspects they have the right to access evidence Moreno-Ocampo intends to use against them. This is to help the suspects to prepare their defence

Ends