The first move legal experts expect both teams to make is to challenge the admissibility of ICC case

The whistle has been blown for the ICC legal proceedings to start in earnest. Prior to the decision of the Pre-Trial Chamber II to issue summonses to the Ocampo Six, prosecutor Luis Moreno-Ocampo had been having the field to himself. The suspects have had no opportunity in challenging any of his submissions.

When the suspects appear before the court beginning April 7, 2011, they will have a right to object to the charges preferred against them by the prosecutor. They will for the first time be informed of the evidence the prosecutor will be relying on and they will have a right to challenge that evidence. They will also have a right to present evidence they believe shows their innocence.

For three of the suspects, there is a good prognosis. The Pre-Trial Chamber II has rejected all charges respecting the occurrences in Kisumu and Kibera. The court found that even though there was evidence of deaths and rape, the prosecutor had not shown them to be in furtherance of a State policy. The court also said the prosecutor did not present any material to show these events were attributable to any of the three suspects.

Burden halved

The three will, therefore, only be dealing with the occurrences in Naivasha and Nakuru. The burden on their legal team has been halved and they should have an easier time in the coming proceedings. The dark side is that the prosecutor has appealed the judges’ decision and the final say on Kisumu and Kibera now lies with the Appeals Chamber.

The other three suspects have not been as lucky. For them,the prosecutor was successful in having them summoned to meet all the charges he has proffered. The burden on their legal teams is heavy as they are faced with charges in respect to occurrences in more areas than the other three.

The prosecutor is basing his charges on occurrences in Turbo town,Huruma, Kiambaa, Kimumu, Langas, Yamumbi,  Kapsabet town and Nandi Hills. He is also relying on occurrences that took place from December 30, 2007 until the end of January 2008, a period of one month. The gravity of this burden is evident when one considers that the occurrences in Naivasha and Nakuru took place from January 24, 2008, for one week.

Clearly, one of the legal teams has an uphill task ahead.The first move that legal experts expect both teams to make is to challenge the admissibility of the case. Under the Rome Statutes that govern the International Criminal Court, the Ocampo Six can challenge the admissibility of the cases on four grounds:
1. That the case is being investigated or prosecuted by the State.
2. That the case has already been investigated by the State and it has decided not to prosecute.
3. That the accused have already been tried by the State on the same offences.
4. That the case is not of sufficient gravity to justify further action by
the ICC.

For the Ocampo Six, the critical grounds will be grounds number 1 and number 4.

Legal experts would advise on a two-pronged attack. The first by the Kenya Government on ground number 1 seeking the case to be stayed pending the completion of investigations and a decision on prosecution. This will entail the government putting its house in order and presenting to the Pre-Trial Chamber II a convincing action plan on investigations and prosecution of the post-election violence cases.

Since the relationship between the State and ICC is complimentary, and the ICC is a court of last resort, there is a fair chance that a convincing action plan could be accepted by the Pre-Trial Chamber and a chance given to the government to implement such an action plan.

The second challenge that lawyers would advise is a challenge of admissibility by the suspects on ground 4. The suspects would argue that even if the evidence presented by the prosecution was believed, the case did not meet the mark of gravity to justify ICC’s involvement. This ground has already been accepted by Judge Hans-Peter Kaul who has twice held that the Kenyan cases are not for trial by an international court but by local national courts.

Although the other two judges seem to be leaning on admissibility of the Kenyan cases, their view is that the issue has not yet come up for their determination. Over the last two decisions, the court has appeared divided on the issue of admissibility. But a proper reading of the judgments shows that there is yet no division on this issue. According to Judge Ekaterina Trendafilova and Judge Cuno Tarfusser, the issue of admissibility arises at different stages where it has to be decided on different considerations.

Judge Hans-Peter has, however, been treating the issue as an overall determination to be made at the beginning of the whole process. The first two judges have found the matter admissible for purposes of an investigation and have refused to decide on admissibility for purposes of the confirmation process. It is when the issue of admissibility is raised after April 7 that they intend to consider whether the ICC has jurisdiction to try the Kenya cases. So far there is no indication which way the two would go.

A critical decision that the legal teams will have to make is whether to make the challenge before Pre Trial Chamber II or to await the confirmation of the charges and make the application before the trial court.

The Rome Statutes require any challenges to admissibility to be made either before confirmation of the charges at the Pre-Trial Chambers or after confirmation before the Trial Chamber. It can, however, only be done once.

The legal teams will have to analyse Judges Trendafilova and Tarfusser and weigh them against the likely judges to be appointed to the Trial Chamber if the charges are confirmed. They will then have to decide where they think they
have better chances.

The good thing is that either decision is appealable and the Appeal Chamber will be yet another opportunity to press the case for inadmissibility.

Impossible to gauge

Two variables in the proceedings ahead are impossible to gauge at this stage. One is the evidence that Ocampo has.  From a reading of all the decisions made, Ocampo appears to have impressed the judges with his evidence. Both in the majority and minority decisions, the judges clearly state that they are convinced by the evidence placed before them. But if the legal teams are able to show the judges that the prosecutor has deceived them with even just some of the evidence, the reaction of the judges against the prosecutor’s case could be catastrophic.

The second variable yet difficult to analyse is the effect of the political and diplomatic manoeuvring initiated by Kenya and the African Union states.

So far, it is difficult to tell whether ICC will succumb to the diplomatic pressure. An application by the State challenging admissibility will be the stage where the effect of this variable will be seen.