03:25 GMT 8th November 2011
Some 1,200 died and more than 500,000 fled their homes in the violence following the disputed December 2007 presidential election in which the incumbent, Mwai Kibaki, was declared the winner. At the time, the accused were all allies of K..ibaki or his main election rival Raila Odinga, now prime minister.
The first three suspects to appear - Eldoret North MP William Ruto, Tinderet MP Henry Kosgey and radio journalist Joshua Sangwill know their fate towards the end of the year. They are accused of organising attacks on supporters of Kibaki, especially in the Rift Valley. At the time of going to press, the remaining three suspects - Deputy Prime Minister Uhuru Kenyatta, Civil Service Chief Francis Muthaura, former Police Commissioner and now post-master general Hussein Ali - were still having their day in court.
ICC Chief Prosecutor Luis MorenoOcampo laughed off the defence team's claim that they had successfully poked holes in his evidence. 'Let them celebrate now but as far as I am concerned, we presented a very watertight case. The decision now rests with the judges,' he said afterwards.
Katwa Kigen, representing Sang, accused the prosecutor of relying on reports by various human rights watchdogs, and commissions of inquiry, instead of conducting his own independent investigations. 'We submit that the prosecution relies on career witnesses who have testified before every commission that has been established in Kenya to investigate the violence,' Kigen told the court.
Sang was accused of using coded language in his breakfast shows on Kass FM, a Kalenjin vernacular radio station, to alert the attackers on where and when to attack the Kikuyus and Kambas. 'Allegations that my client, Mr Sang, used coded language as put forward by prosecution witnesses, but no one has procured the nature of the coded language, are false,' Kigen argued. He also argued that violence was spontaneous and not planned and financed as alleged by the prosecution.
In their final submissions, lawyers for Ruto, Kosgey and Sang said that the 'financial branch' referred to by the prosecution appears to consist of the Emo Foundation and a handful of businessmen, including William Ruto, Henry Kosgey and unidentified opposition party supporters, who financed the cause of Kalenjin interests during the elections.
They argued that Moreno-Ocampo has failed to produce any tangible evidence, such as pictures, transaction or purchase receipts, 'notwithstanding that the collection of such evidence should be within the prosecution's investigative ability, if it in fact exists'. They further argued that the alleged involvement of 'unnamed retired military officials' as part of a network of people that committed crimes at the height of the post-election violence did not mean there was an organised structure.
Some of defence witnesses were alleged coperpetrators, with Samson Cheramboss, a former head of the presidential escort being named as the commander of the armed terror gang. The four witnesses kept contradicting themselves, at one point saying they met Ruto in 2007 and at another, claiming they never met him. All are ethnic Kalenjins, lending credence to the prosecution's assertions that the violence was perpetrated by a network of Kalenjin leaders and businessmen.
Kosgey's lawyer George Oraro did not produce any live witnesses but relied on technical analysis of the prosecutor's evidence to argue his client's case. For instance, he produced video clips showing Kosgey was elsewhere on the dates the prosecution alleges he attended meetings to plan the violence. But the prosecution rebutted this, saying the suspects had access to helicopters and could attend several meetings in a day.
The defence lawyers had to be warned several times by the presiding judge over the use of foul language, disrespect for the court when they laughed during the proceedings, and attempting to name the prosecution's witnesses that were only identified as numbers. 'You can identify a person by revealing details about them but not necessarily by giving out their names,' Judge Ekaterina Trendafilova warned.
It was left to Sureta Chana, a Nairobi lawyer, to make the plight of the victims known. Representing 327 victims, she told the court how they lost their kin and property in the violence, while others were forced to live in dilapidated camps.
'Victims are the reason we are here,' she said. 'They are the ones who suffered loss, their property was damaged and remain in displaced camps four years after they were attacked.'
Indeed, the safety of the victims and witnesses cannot be guaranteed if the threats issued by Belgut MP Charles Keter, who accompanied the suspects to The Hague, are anything to go by. 'We can tell who witnesses Number 6 and 8 are. We shall deal with them when we come back, for they are the traitors among the Kalenjin,' Keter is alleged A camp for 15,000 people forced to flee the post-election violence in E1doret, western Kenya, in 2008 to have said.
In the wake of these threats, MorenoOcampo threatened to level fresh charges against the suspects. Analysts argue that such threats could work against the suspects and may result in their being locked up the next time they appear in court.
As the suspects wait to hear whether their cases will go to full trial or not, President Mwai Kibaki remains a worried man. Despite calls by human rights groups to sack Uhuru and Muthaura, K.ibaki and a coterie of ministers in the PNU wing of the coalition maintain that the suspects are innocent till proven guilty.
But justice and constitutional affairs minister Mutula I(i!onzo disagrees. 'Even before the new constitution was adopted, we had the Public Officers Ethics Act, and we have seen people stepping aside in very petty cases compared to this one. It is obvious that if the cases at the ICC are confirmed, then the two cannot continue serving in government', said Kilonzo.
Quoting a part of the Constitution, Mutula argued, 'If you ask me, the cases at the ICC are over some of the worst crimes on earth; they are demeaning indeed and the law is obviously intolerant of public officers facing such cases.'
If the ICC charges go ahead, there will be a number of political casualties. Both Ruto and Uhuru have indicated that they will vie for the presidency in the 2012 elections and have already formed an alliance with VicePresident Kalonzo Musyoka and Saboti MP Eugene Wamalwa to counter Prime Minister Raila Odinga, whom the opinion polls have placed as a clear frontrunner. Both Uhuru and Ruto blame their ICC woes on Raila's strategy to keep them out of the race.
Even their defence team at The Hague used the same argument and tried to implicate Raila several times in orchestrating the post-election violence. But the prosecution maintained that they had no evidence linking Raila to it. Though Ruto and Uhuru have vowed to forge ahead with their presidential ambitions whether the cases are confirmed or not, analysts believe the odds are against them. With the cases at ICC known to drag for years, it would be a miracle if the suspects manage to get their names on the ballot paper.
Even if the suspects are cleared of the charges, things will never be the same. The accused are already seeing their support drop. During their first appearance at The Hague they were accompanied by over 40 MPs who sang the national anthem off-key in the streets, but this time round they were only accompanied by two Kalenjin MPs, the aforementioned Keter and Kuresoi's Zakayo Cheruyiot.
Even the so-called G7 alliance touted to be a challenge to Raila's dominance is already floundering as no one wants to play second fiddle. A number of meetings attended by those fronting the alliance have failed to come up with a single presidential candidate to face Raila at the polls. Again, should Uhuru and Ruto be incarcerated at The Hague, none of the other G7 leaders can mount a successful campaign against the more experienced and moneyed Raila. Kenyans are watching with bated breath as the events continue to unfold at the ICC.
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