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By Mzalendo Contributor - Moreen Majiwa
On Tuesday this week the Pre-trial Chamber of the International Criminal Court issued
summons ‘to appear’ for the six persons deemed most responsible for the post election
violence of 2007/2008.
The summons were issued in two separate cases the first against Francis Muthaura
(Cabinet Secretary), Uhuru Kenyatta (Deputy Prime Minister/Minister of Finance), and
General Hussien Ali (Post Master General). The Chamber found reasonable grounds to
believe that Francis Muthaura and Uhuru Kenyatta could be criminally responsible as
indirect co-perpetrators (committed crimes through other persons Article 25 (3) (a) of the
Rome Statute) for crimes against humanity specifically murder, forcible transfer, rape,
persecution and other inhumane acts. They found the no reasonable grounds to believe
that General Ali was an indirect co-perpetrator, but found that he could be responsible for
contributing to crimes under Article 25 (d) of the Rome Statute (i.e. that he contributed to
the commission or the attempted commission of crimes by a group of persons acting with
a common purpose).
In the case second case which is against Henry Kosegy (Industrialisation Minister),
William Ruto (Suspended Minister of Higher Education) and Joshua Arap Sang the
Chamber found reasonable grounds to believe that William Ruto and Henry Kosegy
could be criminally responsible as indirect co-perpetrators in accordance with Article 25
(3) of the Rome Statute for crimes against humanity i.e. murder, persecution and forcible
transfer. The chamber found that though Joshua Arap Sang contributed to the crimes in
accordance with Article 25(3) (d) but that there were no reasonable grounds to believe
that was a co-perpetrator.
The two decisions are both 24 to 25 pages long with plenty of ‘legalese’ but definitely
worth the read. There’s a shocking quality to seeing the reasoning process that led up to
the issuing of the summons against the six named suspects starkly outlined in black and
white.
All the six suspects are now required to appear before the Pre-trial Chamber on April 7
for an initial appearance. This step is likely to be followed by a confirmation of charges
hearing, after which the court will decide whether or not the suspects should stand trial.
At this stage it is essential to remember that issuance of summons is not declaration
of guilt but rather finding that on the evidence provided by the Prosecutor there is
reasonable grounds to believe that one or more crimes presented in the Prosecutor’s
cases were committed, and further that there are reasonable grounds to believe that those
named could criminally responsible for the crimes.
Amidst the issuance of summons the standoff between ‘the government’ (the government
in quotes because the government is not unified on this issue) and the ICC continues. The
shuttle diplomacy seems to be going ahead unabated by dissent by certain members
of government, Kenyan citizens and the United States' reiteration that it will not be
supporting the government’s deferral bid to the United Nations Security Council.
Following the Vice President’s visit to the United States, the Deputy Secretary of State
this week declared that the USA ‘does not support a UN Security Council resolution
to defer Kenya’s ICC cases.’ However not to be out done the government will now
challenge the admissibility of the two cases in the ICC, but that’s a different blog.
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