Titanic battle: As the second round of proceedings continues, a well executed plan to rebut Ocampo’s claims is emerging.

The proceedings in the case of The Prosecutor Vs Francis Karimi Muthaura and two others are quite possibly one of the most titanic legal battles in history. From the forum at which these proceedings are being held, the status of the accused persons and the charges against them to the competence of both prosecution and defence lawyers, these proceedings are impressive.

Compared with what we witnessed during the proceedings in case number one, the defence team in the current case is definitely superior, not only in respect to their international stature and experience, but also because they have a discernable legal strategy that is well thought out and executed. From what has happened so far, one can identify the various elements of the strategy being adopted by the defence.

Argumentum ad hominem

Argumentum ad hominem means “argument against the person”. It is a strategy by which one challenges the truth of an argument by attacking the person making it. It tries to show that the argument advanced cannot be logical because the person making it has no credibility.

For instance, one may say that a person’s argument on politics should not be believed because that person has always lost in elections. This strategy was very clear in the opening statements of the defence lawyers. They all attacked chief prosecutor Luis Moreno-Ocampo and told the court that he had charged the suspects based on rumours collected from the streets of Nairobi. By questioning Ocampo’s competence and credibility, they tried to make the court reject his argument as equally incompetent and without credibility.

The likely weakness of this approach is that the office of the prosecutor is an institution of the International Criminal Court. Everything it has done so far has been with the authority of the Pre-Trial Chamber. To accuse Ocampo of using rumours is equally to accuse the judges of the Pre-Trial Chamber of allowing summons to be issued on incompetent evidence. This is potentially offensive to the judges.

Character evidence

In both the Muthaura and Uhuru defences, the defence lawyers put in a lot of evidence as to the character of their clients. They showed that their clients were persons of impeccable character who could never involve themselves in the matters they are accused of.

For Muthaura, there were statements from no less than the President of the Republic of Kenya, the former president and the highest ranking State officers. For Uhuru, there were media clips of his past statements calling for peace and a united country. The only weakness in this strategy is in respect of Ambassador Muthaura.

In a way, the Kenya Government is also on trial at The Hague. It is accused of covering up the perpetrators of the post-election violence and refusing to compensate the victims. By coming on too strongly with exclusively government referees, Muthaura’s lawyers may have created suspicion as to the credibility of these referees. They may be seen as serving the interests of the government at the trial by assisting Muthaura.

The Kenya Government’s credibility

The defence team also asserted the credibility of the Kenya Government in so far as the seat of power was concerned. They told the judges that State House Nairobi is a formal State institution that is no different from those in other countries. One lawyer compared it to Buckingham Palace.

The lawyers were pressing the point that the events alleged to have taken place in State House could never have occurred as it is inconceivable that State House could be the forum for such events. The point came out clearly and the defence may have partially succeeded in making this point to the court.

However, the meeting held at State House between the President and a group of youth put a loophole in this strategy as it created the possibility that similar meetings could have been held with other youths under a similar pretext but with less noble motives.

Blaming Prime Minister Raila Odinga

The defence team placed the blame on post-election violence on Prime Minister Raila Odinga’s call for mass action. Uhuru’s lawyers particularly blamed the Prime Minister for associating him with the Mungiki gang in a statement he issued at Masaba Hospital.

As a similar strategy had been used in the case of The Prosecutor vs William Samoei Ruto and two others barely two weeks earlier, this strategy may not have been that successful. It is not likely that the court will believe that one man only is responsible for all the violence, particularly when the accusations are coming from his political nemeses who have sworn to work together to ensure that he never becomes the President of Kenya.

Explaining the context of the violence

The defence also adopted the strategy of explaining the context of the violence in Nakuru and Naivasha. They portrayed the violence as a spontaneous reaction by internally displaced persons evicted from the Rift Valley.

This strategy did not work as it contradicted the evidence contained in the intelligence reports of the National Security Intelligence Service.Also, the witness called to establish it was discredited by the judges.