Although they have been upbeat about its performance at The Hague, there were glaring mistakes that could prove costly

The confirmation of charges hearings that took place last week at the ICC have left many confused about the likely outcome. On the one hand, the defence has been upbeat about their performance and confidently stated that the charges shall not be confirmed.

But on the other, the prosecution has been equally upbeat with a jubilant Mr. Luis Moreno-Ocampo stating that the prosecution’s case is uncontroverted. So confident was the chief prosecutor that he happily laughed on the air as he forecast his success. I had never heard Mr. Moreno-Ocampo laugh until that moment.

However, the success of the prosecution or the defence will not be about the confidence of their legal teams. It will be about the law and the evidence. Article 61(5) of the Rome Statute provides that “at the hearing, the prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged”.

In the case of Bahar Idriss Abu Garda regarding Darfur, Sudan, Pre-Trial Chamber 1 stated: “The Chamber recalls that the confirmation hearing is neither a trial before the trial or a mini trial, and that the purpose of the confirmation hearing is limited to committing to trial only those persons against whom sufficiently compelling charges going beyond mere theory or suspicion have been brought. This mechanism is designed to protect the rights of the defence against wrongful and unfounded charges”.

The basic obligation of the prosecutor at the confirmation hearing, according to Judge Guno Tarfusser in the Abu Garda case, was to establish a proper connection between a given event, which is a crime, and a given individual as a perpetrator for the event.

Article 61(5) of the Rome Statute says that for purposes of the confirmation hearing, the prosecutor may “rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial”.

The approach taken by lawyers for Tinderet MP Henry Kosgey (centre) is likely to work in his favour.


Convince chamber

Pre-Trial Chamber I in the case of Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus respecting the situation in Darfur stated that: “In more general terms, the prosecutor is not required to tender into the record of the case more evidence than is, in his view, necessary to convince the chamber that the charges should be confirmed.”

Mr. Moreno-Ocampo, therefore, concentrated on proving that he had evidence that proved that there were crimes committed in Kenya and that the three suspects were linked to those crimes as perpetrators. He gave evidence limited to this purpose.

The law is on Mr. Moreno-Ocampo’s side on this evidential matter. In the Abu Garda case, Pre-Trial Chamber 1 held that: “Accordingly, at no point should pre-trial chambers exceed their mandate by entering into a premature in-depth analysis of the guilt of the suspect. The chamber, therefore, shall not evaluate whether the evidence is sufficient to sustain a future conviction.”

Regarding the prosecution’s reliance on summaries of evidence and statements that are heavily redacted (details removed), the same court ruled as follows in the Abu Garda case:

“The chamber is of the view that the prosecution should not be unduly disadvantaged as a result of the use of evidence in a form that is expressly allowed by the governing legal provisions of the court”.

Using only the evidence necessary for that purpose, the prosecutor tried to establish the following:

  • That there was an outbreak of violence in Kenya.
  • That this violence was planned, financed and executed by a group of people called “the network”.
  • That “the network” was a joint criminal enterprise.
  • That Mr William Ruto, Mr Henry Kosgey and Mr Joshua arap Sang were members of the joint criminal enterprise.


On its part, the defence put forward its case as follows:

  • There was violence in Kenya.
  • The violence started by ODM calling for mass action.
  • The outbreak of the violence was spontaneous.
  • The violence was not restricted to the Rift Valley Province.
  • “The network” did not exist, neither did the alleged meetings and other events occur.


In support of this theory, the defence gave the court an in-depth analysis of the prosecutor’s evidence and was able to show major inconsistencies and contradictions. The defence also provided the testimony of four witnesses that gave an alternative account of the events relied on by the prosecution. Bahar Idriss Abu Garda was successful in fighting off the prosecutor’s case against him at the confirmation of charges hearing by relying on the contradictions and inconsistencies of the prosecutor’s evidence.

But this strategy only worked for Abu Garda because beyond showing the inconsistencies, he was able to remove himself from the events alleged. In fact Abu Garda gave an unsworn statement in which he accounted for all his movements in the months of September 2007 when he was alleged to be directing the attacks.

Under the rules of international criminal trials, contradictions and inconsistencies do not in themselves result in the rejection of the evidence of the witnesses. If the contradictions do not dent the overall theory of the prosecutor’s evidence, as they had done in the Abu Garda case, they will not be considered fatal to the case.

In the case of Thomas Lubanga Dyilo, the defence took issue with contradictions and inconsistencies of the testimony of children that the prosecution was relying on as witnesses and that of an expert called Kristine Peduto. Pre-Trial Chamber 1 ignored the contradictions and inconsistencies.

“The Chamber is not satisfied that the statements of these child witness … are not credible specifically because they provided names of commanders who were either no longer alive or could not have been physically present at the time, or described non-existent … events which, by simple mathematical calculation, are impossible,” the judges ruled. “Similarly in relation to Kristine Peduto, the Chamber holds the view that … “serious contradictions, chronic uncertainty, severe memory lapses, serious mistakes as well as an alarming lack of knowledge of her working environment … do not unnecessarily affect the truthfulness of her testimony as a whole.”

So, the defence’s reliance on the contradictions and inconsistencies of the prosecutor’s case willonly help their case if it puts doubt in the prosecution’s theory that “the network” existed and that the suspects were part of it. If the prosecution’s theory appears to be supported by other evidence before the court, these contradictions and inconsistencies will be ignored by the Chamber.

In my analysis, the witnesses called by the defence may not have been very helpful and may in fact have damaged the case of the suspects more than helped it. For instance, they all appeared to the court to be belittling the nature of the violence and the crimes committed. One of the witnesses even suggested that the IDPs were still in the camps for their own reasons.

Mr Ruto’s witnesses might also have damaged his case by creating a connection between him and Mr Sang. Both witnesses stated that Mr Sang’s lawyer Katwa Kigen was also their lawyer, and they had dealt with him from as early as 2008. This supports Mr Ocampo’s theory of a connection between the two suspects.

WEAKNESSES : How the witnesses may have hurt the case for Ruto and Sang

Samson Cherambos

He is named by the prosecutor as a military commander of “the network” and thus a co-perpetrator with the suspects. His defence of the suspects would, therefore, have low persuasive value. One judge asked him if he had met Mr Ruto in 2007 before the violence. He answered yes. I think the question was more significant than he suspected.

Henry Kiptoo Murei

He corroborated the testimony of the prosecution that Mr Ruto was holding political meetings in his house in 2007. While saying no violence was planned in those meetings, he admitted it was possible other meetings were held to which he was not invited. He also gave such a rosy picture of Mr Ruto as a good neighbour of people from other communities that he raised the question in one’s mind why those neighbours did not testify.

Professor Paul Chepkwony

He hurt Ruto’s case by introducing UDM into the issues and creating a connection between Mr Ruto and General Koech that flowed from ODM in 2007 to UDM in 2011. General Koech is named as a military commander of “the network”.

Bishop Jackson Kosgei

Like Mr Cherambos, Bishop Kosgei is of little persuasive value as he is also named as a suspected co-perpetrator. His testimony hurt Mr Ruto’s case when he admitted that EMO foundation had not donated any money to the IDPs and also that he had never visited an IDP camp, despite claiming EMO served all communities. When he used his disability as a reason why he couldn’t visit the camps, the lawyer for the victims pointed out that the disability had not prevented him from travelling to the USA in 2006 and to The Hague to testify.


Henry Kosgey did not call any witnesses. Nor did he take the line of defence taken by Ruto and Sang. He did not deny the violence nor suggest any theory of why it occurred. He seemed to be telling the court that while it may be true that “the network” existed, he himself is not connected to it in any way. With the tack taken by his legal team, Kosgey is the suspect who appears to have the greatest likelihood of beating the prosecution’s case.

And because Ocampo’s witnesses remain secret with only scanty details of their testimony available it’s not possible to make a credible conclusion of the prosecution’s case.