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Post by akinyi2005 on Mar 8, 2011 21:25:38 GMT 3
they are all on record promising to go clear their names after the summonses are issued. well, the day of reckoning is here let's see who chickens out and decides to become an international fugitive.
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Post by tnk on Mar 8, 2011 21:27:47 GMT 3
thanks buddy have just skimmed through this is awesome looks like if Ali plays it smart, he can totally pin the stuff on Muthaura and walk away. But muthaura and uhuru will be nailed. it would appear ruto, kosgei and sang had an established enterprise going, complete with structure
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Post by gachquota on Mar 8, 2011 21:30:07 GMT 3
Am on a drinking spree heineken mpakaa kesho ....wont stop kant stop.....
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Post by shifta on Mar 8, 2011 21:31:10 GMT 3
...always keeping in mind two things: justice for ALL the PEV victims, and secondly this is about tackling impunity and it is not about PNU or ODM
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Post by nalinali on Mar 8, 2011 21:33:00 GMT 3
It appears that Hussein Ali is let off the hook? At least for now. Need legals mind to explain the nuances here.
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Post by phil on Mar 8, 2011 21:35:08 GMT 3
...7th April 2011 is a test with summons. Automatic warrants to be issued to those who decide to run...... Comply with the summons, and be detained at the Hague until completion of thre case!
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Post by reporter911 on Mar 8, 2011 21:36:29 GMT 3
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Post by adongo23456 on Mar 8, 2011 21:39:09 GMT 3
Folks,
Expect an earthquake in the joint, but it will be limited to State House, so no need to worry. The nation is fine. This is going to be mharo non stop. People need to be restrained from harming themselves. Suicide watch should be put in place for the suspects.
But the real deal is will they go to the Hague in exactly 30 days from today. You do not so up, Ocampo goes for the nuclear option which is an arrest warrant followed by digging a Saddam hole to hide in. You show up, there are no guarantees. Some Sudanese chaps came up, Ocampo asked for summons the judges agreed but then decided they will spend the time in hotels at the Hague.
And here we have drama queens. What are they going to do now? Keep ropokaring and you are asking Ocampo to pull out his legal bazookas. This is another great day for the nation. We keep moving piece by piece. We will get there.
And the sense of timing by the ICC judges. Impeccable and with a clear message. Nobody is fooling around.
adongo
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Post by job on Mar 8, 2011 21:41:54 GMT 3
It appears that Hussein Ali is let off the hook? At least for now. Need legals mind to explain the nuances here. Ali has not been let off the hook. He too has a summons, only that his role is a bit minimized & seperated from the joint co-perpetration by Uhuru, Muthaura et al.,.
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Post by tnk on Mar 8, 2011 21:44:18 GMT 3
Am on a drinking spree heineken mpakaa kesho ....wont stop kant stop..... count me in
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Post by nalinali on Mar 8, 2011 21:47:24 GMT 3
Folks,Expect an earthquake in the joint, but it will be limited to State House, so no need to worry. The nation is fine. This is going to be mharo non stop. People need to be restrained from harming themselves. Suicide watch should be put in place for the suspects. But the real deal is will they go to the Hague in exactly 30 days from today. You do not so up, Ocampo goes for the nuclear option which is an arrest warrant followed by digging a Saddam hole to hide in. You show up, there are no guarantees. Some Sudanese chaps came up, Ocampo asked for summons the judges agreed but then decided they will spend the time in hotels at the Hague. And here we have drama queens. What are they going to do now? Keep ropokaring and you are asking Ocampo to pull out his legal bazookas. This is another great day for the nation. We keep moving piece by piece. We will get there. And the sense of timing by the ICC judges. Impeccable and with a clear message. Nobody is fooling around. adongo Adongo At the risk of being seen to twit, let just say the six (particularly Ruto and Uhuru) just have to appear in the next funeral/harambee and heap it all on Raila and life continues for them.
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Post by phil on Mar 8, 2011 21:49:59 GMT 3
Am on a drinking spree heineken mpakaa kesho ....wont stop kant stop..... count me in me too! yangu baridi.
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Post by tnk on Mar 8, 2011 21:55:02 GMT 3
Folks,Expect an earthquake in the joint, but it will be limited to State House, so no need to worry. The nation is fine. This is going to be mharo non stop. People need to be restrained from harming themselves. Suicide watch should be put in place for the suspects. But the real deal is will they go to the Hague in exactly 30 days from today. You do not so up, Ocampo goes for the nuclear option which is an arrest warrant followed by digging a Saddam hole to hide in. You show up, there are no guarantees. Some Sudanese chaps came up, Ocampo asked for summons the judges agreed but then decided they will spend the time in hotels at the Hague. And here we have drama queens. What are they going to do now? Keep ropokaring and you are asking Ocampo to pull out his legal bazookas. This is another great day for the nation. We keep moving piece by piece. We will get there. And the sense of timing by the ICC judges. Impeccable and with a clear message. Nobody is fooling around. adongo Adongo At the risk of being seen to twit, let just say the six (particularly Ruto and Uhuru) just have to appear in the next funeral/harambee and heap it all on Raila and life continues for them. i hope the nairobi star can publish the ICC summons and distribute these far and wide the DN and EAS are way too biased. let people mashinani read for themselves. those few pages are glimpse of what lies ahead, the redacted texts surfaced a little bit here and there. these 5 guys stand no chance against ocampo. only Ali has been accorded a little bit of wiggle room.
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Post by phil on Mar 8, 2011 21:59:23 GMT 3
1) Summonses have been issued.
2) Again, it is a 2-1 majority decision, with the German Judge, Kaul dissenting yet again, while the other two agreeing.
3) Assets freezes and property seizures (into a fund held for victims) is a natural consequence of the summonses. Will the government cooperate in freezing assets of Uhuru Kenyatta and William Ruto for instance?
4) Muthaura, Kenyatta and Ali must automatically be relieved of their public duties. Job can you guys copy paste the entire summonses to Jukwaa? What exactly is Ali's talking about? Am alarmed that such an arrogant thug in uniform could walk away free! What's the precise sequence of events once the suspects make it to the Hague on 7th? KTN said that indictments will probably come by end of the year, since the court has an eye on Kenya's electoral cycle. Another matter that I am looking forward to is testimonies from Ocampos witnesses. These am told comprise of vivtims as well as members of armed militia, security forces and medical officials from Kenya's hospitals and morgues. When are they likely to take the witness stands? Am on the move, so am not as informed as I would while am at station. Thanks
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Post by Titchaz on Mar 8, 2011 22:47:07 GMT 3
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Post by job on Mar 8, 2011 23:03:05 GMT 3
Cour Pénale Internationale / International Criminal Court
Original: English No.: ICC-01/09-01/11
Date: 8 March 2011
PRE-TRIAL CHAMBER II
Before: Judge Ekaterina Trendafilova. Presiding Judge Judge Hans-Peter Kaul Judge Cuno Tarfusser
SITUATION IN THE REPUBLIC OF KENYA IN THE CASE OF THE PROSECUTOR V. WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY AND JOSHUA ARAP SANG
Public Document
Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang
Decision to be notified, in accordance with regulation 31 of the Regulations of the Court, to:
The Office of the Prosecutor Luis Moreno-Ocampo, Prosecutor Fatou Bensouda, Deputy Prosecutor Counsel for the Defence Legal Representatives of the Victims Legal Representatives of the Applicants Unrepresented Victims Unrepresented Applicants for Participation/Reparation The Office of Public Counsel for Victims The Office of Public Counsel for the Defence States Representatives Amicus Curiae Other REGISTRY Registrar & Deputy Registrar Silvana Arbia, Registrar Didier Preira, Deputy-Registrar Defence Support Section Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section
PRE-TRIAL CHAMBER II (the "Chamber") of the International Criminal Court (the "Court") renders this decision on the "Prosecutor's Application Pursuant to Article 58 as to William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang" (the "Application").!
1. On 31 March 2010, the Chamber issued its decision, in which it granted, by majority, the Prosecutor's request to commence an investigation in the situation in the Republic of Kenya for crimes against humanity to the extent specified in the operative part of the said decision (the "31 March 2010 Decision").
2. On 15 December 2010, the Prosecutor submitted the Application requesting the Chamber to:
a) Find that there are reasonable grounds to believe that WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY and JOSHUA ARAP SANG committed crimes within the jurisdiction of the International Criminal Court and find that the issuance of summonses to appear is appropriate;
b) Issue summonses to appear for WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY and JOSHUA ARAP SANG; and
c) Direct the Registry, in consultation and coordination with the Prosecution, to prepare and transmit a request for summonses to appear for WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY and JOSHUA ARAP SANG.
3. The Prosecutor also requested that the Chamber issue the summonses to appear for the three persons subject to a number of conditions outlined in paragraph 219 of the Application.
4. On 16 February 2011, the Chamber requested the Prosecutor to submit all witnesses' statements which he relies on for the purposes of his Application under article 58 of the Rome Statute (the "Statute"), no later than 23 February 2011 (the "16 February 2011 Decision").
5. On 23 February 2011, the Chamber received the witnesses' statements as requested in its 16 February 2011 Decision.
6. For the sake of ruling on the Prosecutor's Application, the Chamber shall examine in a chronological order the following elements: (i) jurisdiction and admissibility; (ii) whether there are reasonable grounds to believe that one or more crimes outlined in the Prosecutor's Application has been committed; (iii) whether there are reasonable grounds to believe that William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang ("Ruto", "Kosgey" and "Sang" respectively) are criminally responsible for the crimes presented in the Prosecutor's Application; and (iv) whether the requirements to issue summonses to appear for Ruto, Kosgey and Sang have been met.
I. Jurisdiction and admissibility
7. Article 19(1) of the Statute provides that: "The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17".
8. The Chamber considers that, regardless of the mandatory language of article 19(1) of the Statute, which requires an examination of whether the Court has the competence to adjudicate the case under consideration, any judicial body has the power to determine its own jurisdiction, even in the absence of an explicit reference to that effect. This is an essential feature in the exercise by any judicial body of its Pre-Trial Chamber II, "Decision Requesting the Prosecutor to Submit the Statements of the Witnesses on which he Relies for the Purposes of his Applications under Article 58 of the Rome Statute", functions and is derived from the well-recognised principle of la compétence de la compétence/
9. The phrase "satisfy itself that it has jurisdiction" also entails that the Court must 'attain the degree of certainty' that the jurisdictional parameters set out in the Statute have been satisfied. Thus, the Chamber's determination as to whether it has jurisdiction over the case against Ruto, Kosgey and Sang is a prerequisite for examining the Prosecutor's Application and in turn, the issuance or not of summonses to appear against those persons pursuant to article 58 of the Statute.
10. In its 31 March 2010 Decision, the Chamber examined the different facets of jurisdiction in terms of place (ratione loci, i.e. in the Republic of Kenya), time {ratione temporis, i.e. crimes allegedly committed after 1 June 2005), and subject-matter {ratione materiae, i.e. crimes against humanity). It also defined the scope of the Prosecutor's investigation with respect to the situation under consideration, in view of the above-mentioned three jurisdictional prerequisites, namely the territorial, temporal and material parameters of the situation. It found that all the requirements were met, which led it to authorise the Prosecutor to commence an investigation into the situation in the Republic of Kenya in relation to "crimes against humanity within the jurisdiction of the Court committed between 1 June 2005 and 26 November 2009" .
11. In the context of the present decision, the Chamber has reviewed the Application and the supporting materials and is of the view that, since the Prosecutor has adhered to the Court's territorial, temporal and material parameters defining the situation as confirmed in its 31 March 2010 Decision, it finds no need to reiterate its finding and provide a further detailed assessment of the question of jurisdiction of the case arising from that situation at this stage. In light of the foregoing, the ICC- Chamber finds that it has jurisdiction to adjudicate the case which is the subject of the Prosecutor's Application.
12. Regarding admissibility, the second sentence of article 19(1) of the Statute dictates that an admissibility determination of the case is only discretionary at this stage of the proceedings, in particular when triggered by the proprio motu powers of the Chamber. Accordingly, the Chamber shall not examine the admissibility of the case at this phase of proceedings.
II Whether there are reasonable grounds to believe that one or more of the crimes presented in the Prosecutor's Application have been committed
13. In his Application, the Prosecutor alleged that crimes against humanity have been committed in different locations in the Republic of Kenya as follows:
Count 1
Murder constituting a crime against humanity (Article 7(l)(a) and Article 25(3)(a) or (d) of the Statute)
From 30 December 2007 to the end of January 2008, WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY, and JOSHUA ARAP SANG, as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity in the form of murder in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town in the Uasin Gishu and Nandi Districts, Republic of Kenya, in violation of Articles 7(l)(a) and 25(3)(a) or (d) of the Rome Statute.
Count 2
Deportation or forcible transfer of population constituting a crime against humanity (Article 7(l)(d) and Article 25(3)(a) or (d) of the Statute)
From 30 December 2007 to the end of January 2008, WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY and JOSHUA ARAP SANG as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity in the form of deportation or forcible transfer of population in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town and Nandi Hills town in the Uasin Gishu and Nandi Districts, Republic of Kenya in violation of Articles 7(l)(d) and 25(3)(a) or (d) of the Rome Statute.
Count 3
Torture constituting a crime against humanity (Article 7(l)(f) and Article 25(3)(a) or (d) of the Statute)
From 30 December 2007 to the end of January 2008, WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY and JOSHUA ARAP SANG, as co-perpetrators, or in the alternative as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity in the form of torture by inflicting severe physical or mental pain or suffering upon civilians, in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, and Langas), Kapsabet town and Nandi Hills town in the Uasin Gishu and Nandi Districts, Republic of Kenya, in violation of Articles 7(l)(f) and 25(3)(a) or (d) of the Rome Statute.
Count 4
Persecution as a crime against humanity (Article 7(l)(h) and Article 25(3)(a) or (d) of the Statute)
From 30 December 2007 to the end of January 2008, WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY and JOSHUA ARAP SANG as co-perpetrators, or in the alternative as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity in the form of persecution, when co-perpetrators and/or persons belonging to their group intentionally and in a discriminatory manner targeted civilians based on their political affiliation, committing murder, torture, and deportation or forcible transfer of population, in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town and Nandi Hills town in the Uasin Gishu and Nandi Districts, Republic of Kenya, in violation of Articles 7(l)(h) and 25(3)(a) or (d) of the Rome Statute.
14. The Prosecutor submitted that the crimes referred to under Counts 1 to 4 were committed by large and organized gangs of Kalenjin youth against members of the civilian population, as part of a widespread and systematic attack. In the view of the Prosecutor, this attack was committed on the basis of the population's political affiliation to the 'Party of National Unity (PNU)' and pursuant to an organizational policy.!!
15. The Chamber recalls its legal analysis and findings on the law (as opposed to the facts) concerning the contextual elements of the crimes against humanity as conducted in its previous decisions, including the 31 March 2010 Decision, and sees no reason to either reiterate or depart from them.
16. On the basis of the Application, the information and the summary of evidence presented (collectively, the "material"), the Chamber finds that there are reasonable grounds to believe that, immediately after the announcement of the results of the presidential election and specifically from 30 December 2007 until the end of January 2008, an attack was carried out in locations including Turbo town, the greater Eldoret area (encompassing Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town and Nandi Hills town, in the Uasin Gishu and Nandi Districts, Republic of Kenya.
17. The Chamber further finds that there are reasonable grounds to believe that the attack targeted the civilian population namely, the Kikuyu, Kamba and Kisii ethnic groups, which were perceived as PNU supporters. There also reasonable grounds to believe that the attack against the civilian population was widespread, as evidenced by the number of victims subjected to the attack and those who have been displaced or have taken refuge as a result of such attack, the different locations targeted, as well as the amount of burning and destruction of properties.
18. In particular, there are reasonable grounds to believe that the violence in the Uasin Gishu District (encompassing Turbo town and the Eldoret area) resulted in burning and destruction of 1475 houses, death of approximately 230, 505 injured persons and the displacement of 7800 persons. In the Nandi District (encompassing Kapsabet town and Nandi Hills town), the attack ended in the death of 7 persons and the injury of more than 500. A number of houses and business premises were also looted and burned. The perpetrators left three people dead on 8 January 2008 in Kapsabet town and killed others in the vicinity of the roadblocks erected about 2 kilometers from Kapsabet town. About 32,000 persons were forced to seek refuge at Nandi Hills police station and in the surrounding areas.
19. Moreover, there are reasonable grounds to believe that the attack was also systematic as the perpetrators employed similar means and methods to attack the different locations, namely that they: (i) approached the targets simultaneously, in large numbers, and from different directions; (ii) erected roadblocks around such locations. (iii) had previously identified which properties belonged to PNU supporters, in readiness for their attack; and (iv) used petrol and other inflammable material to systematically burn down the properties belonging to PNU supporters.
20. The Chamber is also satisfied that there are reasonable grounds to believe that the attack against the civilian population was committed pursuant to an organizational policy.
21. According to the Prosecutor, there was a plan to punish PNU supporters in the event that the 2007 presidential elections were rigged. The plan aimed at expelling them from the Rift Valley, with the ultimate goal of creating a uniform Orange Democratic Movement (ODM) voting block.
22. In order to implement the plan agreed upon, the Prosecutor submitted that Ruto, Kosgey and Sang established a network of perpetrators belonging to the Kalenjin community. This network was comprised of eminent ODM political representatives, representatives of the media, former members of the Kenyan police and the army, Kalenjin elders as well as local leaders.
23. The Chamber is of the view that there are reasonable grounds to believe that the network had the capability to perform acts which infringe on basic human values. According to the material presented by the Prosecutor, there are reasonable grounds to believe that the network was under responsible command and had an established hierarchy, with Ruto as leader, Kosgey as deputy leader and treasurer and Sang as responsible for communicative purposes. The material presented establishes reasonable grounds to believe that the hierarchical structure of the network comprised of three commanders and four divisional commanders, who were responsible for operations on the field. Subordinate to the commanders, were other individuals who were tasked with more specific functions, such as the identification of targets and storage of weapons.
24. There are also reasonable grounds to believe that the network possessed the means to carry out a widespread or systematic attack against the civilian population, as its members had access to and utilised a considerable amount of capital, guns, crude weapons and manpower. The material presented also provides reasonable grounds to believe that the network identified the criminal activities against the civilian population as its primary purpose, and that it articulated an intention to attack the civilian population.
25. In light of the foregoing, the Chamber considers that the network qualifies as an "organization" within the meaning of article 7(2)(a) of the Statute.
26. With regard to the policy element, the Chamber considers that there are reasonable grounds to believe that the organization promoted a policy aimed at targeting members of the civilian population supporting the PNU, in order to punish them and evict them from the Rift Valley, with the ultimate goal of gaining power and creating a uniform ODM voting block.
27. More specifically, there are reasonable grounds to believe that between late December 2006 and the days immediately before the 2007 presidential elections, a series of preparatory meetings were held to discuss and arrange the modalities of the implementation of the said policy .
28. The Chamber finds that there are reasonable grounds to believe that, over the course of these meetings, several issues which were crucial for the implementation of the policy were dealt with, including: (i) the appointment of commanders and divisional commanders responsible for operations on the field;^^ (ii) the production of maps marking out areas most densely inhabited by communities perceived to be or actually siding with the PNU; (iii) the purchase of weapons and their storage before the attack; (iv) the transportation of the perpetrators to and from the targeted locations; (v) the establishment of a rewarding mechanism to motivate the perpetrators to kill the highest possible number of persons belonging to the target communities as well as to destroy their properties.
29. In view of the above, the Chamber finds that the contextual elements for crimes against humanity alleged in the Prosecutor's Application have been satisfied.
30. Turning to the alleged underlying acts constituting crimes against humanity, the Chamber is satisfied, on the basis of the facts presented in the material, that there are "reasonable grounds to believe that murder as a crime against humanity was committed, as part of the attack against the civilian population in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town, in the Uasin Gishu and Nandi Districts, Republic of Kenya, from 30 December 2007 to the end of January 2008 (Count 1). In particular, according to the material presented, the physical perpetrators identified people belonging to enemy communities by checking their identification documents or asking for their names, killing them immediately by way of shooting with weapons or with arrows.
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Post by job on Mar 8, 2011 23:03:23 GMT 3
31. On the basis of the factual examination entertained in paragraph 18 above, the Chamber further finds that there are reasonable grounds to believe that forcible transfer of population, as a crime against humanity, was committed as part of the attack against the civilian population in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town, in the Uasin Gishu and Nandi Districts, Republic of Kenya, from 30 December 2007 to the end of January 2008 (Count 2).46 More specifically, between 30 December 2007 and 1 January 2008, large gangs of perpetrators associated with the network strategically converged upon Turbo Town, the greater Eldoret area, Kapsabet town and Nandi Hills town, and started burning down properties. These houses and business premises were burned as they were owned and/or occupied by members of particular communities, namely Kikuyu, Kamba and Kisii. The destruction of property was the primary tactic used by the network's perpetrators to forcibly remove PNU supporters from the targeted areas.
32. In respect of the Prosecutor's allegations regarding the crimes against humanity of persecution, the Chamber considers that the material presented establishes reasonable grounds to believe that the acts of murder and forcible transfer of population, referred to earlier, were committed primarily on political grounds by reason of the identity of the victims as perceived PNU supporters. Therefore, the Chamber finds that there are reasonable grounds to believe that persecution as a crime against humanity, was committed in connection with and through acts of murder and forcible transfer, as part of the attack against the civilian population in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town, in the Uasin Gishu and Nandi Districts, Republic of Kenya from 30 December 2007 until the end of January 2008 (Count 4).
33. Finally, in relation to the Prosecutor's allegations of acts constituting torture as a crime against humanity (Count 3), the Chamber considers that the material presented is not sufficient to establish reasonable grounds to believe that acts of torture as a crime against humanity were committed in the relevant locations and at the relevant time referred to in the Prosecutor's Application. This is without prejudice to the possibility that the Prosecutor presents new evidence in the future substantiating this alleged crime.
III Whether there are reasonable grounds to believe that William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang are criminally responsible for the crimes presented in the Prosecutor's Application
34. In view of the conclusions reached in section II above, the Chamber's assessment with regard to the attribution of criminal responsibility for Ruto, Kosgey and Sang shall be confined to those crimes in respect of which the Chamber has found reasonable grounds to believe that they were committed namely, the crimes set out in Counts 1, 2 and 4 of the Prosecutor's Application.
35. In his Application, the Prosecutor inconsistently presented different modes of liability. In paragraphs 26 and 27 of the Application, the Prosecutor submitted that there are reasonable grounds to believe that "during the PEV, including but not limited to the time period between 27 December 2007 and the end of January 2008", Ruto, Kosgey and Sang committed the crimes against humanity referred to in Counts 1 to 4 of the Application, and that "the requirements of direct/indirect coperpetration or of common purpose criminal liability pursuant to Article 25(3)(a) or (d) have been met". In presenting his counts, the Prosecutor described the alleged responsibility of the three persons only "as co-perpetrators, or in the alternative" as falling under article 25(3)(d) of the Statute. Later, under the section on modes of liability, the Prosecutor alleged that the three persons' criminal responsibility fits as "indirect co-perpetrators, or in the alternative, as co-perpetrators" or as common purpose liability under article 25(3)(d) of the Statute.
36. Although the Prosecutor may generally charge in the alternative, he should be consistent throughout his Application about the actual mode(s) of liability that he intends to present to the Chamber. Moreover, the possibility for the Prosecutor to charge in the alternative does not necessarily mean that the Chamber has to respond in the same manner. In particular, the Chamber is not persuaded that it is best practice to make simultaneous findings on modes of liability presented \ in the alternative. A person cannot be deemed concurrently as a principal and an accessory to the same crime. Thus, it is the Chamber's view that an initial decision has to be made on the basis of the material provided, as to whether there are reasonable grounds to believe that Ruto, Kosgey and Sang bear criminal responsibility for the crimes against humanity that occurred in the specific locations in the Republic of Kenya, as discussed in section II above, either as co-perpetrators, indirect coperpetrators, or any other form of liability presented or that the Chamber finds appropriate.
37. On the basis of the material presented, the Chamber finds reasonable grounds to believe that Ruto and Kosgey are criminally responsible for the crimes against humanity of: murder (article 7(l)(a)); forcible transfer of population (article 7(l)(d)) and persecution (article 7(l)(h)) as indirect-co perpetrators pursuant to article 25(3)(a) of the Statute. The Chamber, however, does not find reasonable grounds to believe that Sang is criminally responsible as a principal, le,, an indirect coperpetrator with Ruto and Kosgey for the crimes against humanity referred to above.
38. Since the Chamber is satisfied, on the basis of the available material, that indirect co-perpetration is the appropriate mode of liability for Ruto and Kosgey, there is no reason to examine their role in light of the alternative mode of liability embodied in article 25(3)(d) of the Statute. As to Sang, the Chamber is satisfied that the material presented, reveals that there are reasonable grounds to believe that his role is best characterised under article 25(3)(d) of the Statute.
39. The Chamber recalls its finding in the confirmation of charges decision concerning the Prosecutor v. Jean-Pierre Bemba, in which it acknowledged that the concept of co-perpetration (joint commission), whether direct or indirect, embodied in article 25(3)(a) of the Statute and reflected in the words "[committing] jointly with another or through another person" must go together with the notion of "control over the crime" .
40. The Chamber also recalls that the mode of liability of indirect co-perpetration consists of the following elements: (i) the suspect must be part of a common plan or an agreement with one or more persons; (ii) the suspect and the other coperpetrator( s) must carry out essential contributions in a coordinated manner which result in the fulfilment of the material elements of the crime; (iii) the suspect must have control over the organisation; (iv) the organisation must consist of an organised and hierarchal apparatus of power; (v) the execution of the crimes must be secured by almost automatic compliance with the orders issued by the suspect; (vi) the suspect must satisfy the subjective elements of the crimes; (vii) the suspect and the other co-perpetrators must be mutually aware and accept that implementing the common plan will result in the fulfilment of the material elements of the crimes; and (viii) the suspect must be aware of the factual circumstances enabling him to exercise joint control over the commission of the crime through another person(s).
41. The Chamber finds that there are reasonable grounds to believe that from 30 December 2006 to the end of December 2007, Ruto, Kosgey and Sang, held a series of meetings in which they agreed on a common plan to punish PNU supporters and evict them from the Rift Valley, with the ultimate goal of gaining power and to create a uniform ODM voting block.
42. The Chamber is satisfied that there are reasonable grounds to believe that Ruto - in his capacity as the most representative Kalenjin leader and head of the organization established - together with Kosgey - who was the deputy of Ruto and the Chairman of ODM as well as MP for Tinderet constituency - provided essential contributions to the implementation of the common plan by way of organising and coordinating the commission of widespread and systematic attacks that meet the threshold of crimes against humanity as discussed in section II above, in the absence of which the plan would have been frustrated. More specifically, the material presented establishes reasonable grounds to believe that Ruto:
(i) overall planned and was responsible for the implementation of the common plan in the entire Rift Valley; (ii) created a network of perpetrators to support the implementation of the common plan; (iii) directly negotiated or supervised the purchase of guns and crude weapons; (iv) gave instructions to the perpetrators as to who they had to kill and displace and whose property they had to destroy; (v) established a rewarding mechanism with fixed amounts of money to be paid to the perpetrators upon successful murder of PNU supporters or destruction of their properties.
43. With regard to Kosgey, the evidence indicates that there are reasonable grounds to believe that he: (i) promoted, together with Ruto, the creation of the network of perpetrators; (ii) actively organized the modalities of the implementation of the common plan, in his capacity as deputy of Ruto; and that (iii) he was responsible for the implementation of the common plan in the Nandi District. Moreover, there are reasonable grounds to believe that Kosgey was in charge of managing the financial resources of the organization for the purpose of implementing the common plan.
44. However, the Chamber is not satisfied that there are reasonable grounds to believe that Sang's involvement in two of the preparatory meetings throughout the period 30 December 2006 until end of December 2007, as well as his role as a broadcaster for Kass FM radio station, constituted essential contributions, to the extent that he had the power to frustrate the commission of the crimes, by not fulfilling his task. Accordingly, the Chamber finds that there are not reasonable grounds to believe that Sang is a principal perpetrator to the crimes within the meaning of article 25(3)(a) of the Statute.
45. Nevertheless, the Chamber reiterates that there are reasonable grounds to believe that there existed an organization which reflected a hierarchical structure, headed and controlled by Ruto and Kosgey by virtue of the different prominent roles they played within that organization. In addition, there are reasonable grounds to believe that, due to their positions and powers within the organization, Ruto and Kosgey were able to secure the execution of the crimes agreed upon by almost automatic compliance of the physical perpetrators with the orders given by the leaders.
46. According to the material available, the Chamber finds reasonable grounds to believe that Ruto and Kosgey satisfy the subjective elements of the crimes and that they were aware of the widespread and systematic nature of the attacks committed against the civilian population, in the context of which the crimes were perpetrated. The evidence indicates that there are reasonable grounds to believe that Ruto, during the preparatory meetings and in the implementation phase of the plan, gave instructions to the perpetrators - either orally or via phone messages - to carry on acts of murders, displacement and destruction of property against PNU supporters.
47. As for Kosgey, there are also reasonable grounds to believe that he actively participated in a number of preparatory meetings where the details of the plan were disclosed, including the amount of weapons and funds at disposal of the organization and the identification of the areas most densely inhabited by PNU supporters.
48. The Chamber further finds that there are reasonable grounds to believe that Ruto and Kosgey, by virtue of their positions within the organization and the powers they exercised over its members and its resources, were aware and accepted that implementing the common plan, which they agreed upon, would have resulted in the fulfilment of the material elements of the crimes against humanity referred to in section II above. Moreover, there are reasonable grounds to believe that Ruto and Kosgey were vested with such a power and exercised such functions within the organization so as to put them in position of exercising joint control over the commission of these crimes and to make them aware of the circumstances enabling them to jointly exercise such control.
49. For the foregoing reasons, the Chamber finds that there are reasonable grounds to believe that Ruto and Kosgey are criminally responsible as indirect coperpetrators under article 25(3) (a) of the Statute for the crimes against humanity examined in section II of the present decision.
50. The Chamber recalls its earlier finding, in paragraph 37 of the present decision, that based on the material submitted by the Prosecutor, there are not reasonable grounds to believe that Sang could be held responsible as indirect co-perpetrator under article 25(3)(a) of the Statute. In anticipation, the Prosecutor requested, in the alternative, that Sang be considered as having contributed to a crime committed by a group of persons within the meaning of article 25(3)(d) of the Statute. Thus, the Chamber shall examine whether there are reasonable grounds to believe that Sang is criminally responsible under article 25(3) (d) of the Statute for the crimes against humanity committed and referred to in section II of this decision.
51. According to article 25(3)(d) of the Statute, there are specific requirements that must be met in order to trigger the responsibility of Sang under this mode of liability. Thus, the Chamber must ascertain in view of the required evidentiary threshold that: (i) a crime within the jurisdiction of the Court is attempted or committed; (ii) a group of persons acting with a common purpose attempted to commit or committed this crime; (iii) the individual contributed to the crime, in any way other than those set out in article 25(3)(a) to (c) of the Statute (objective elements); (iv) the said contribution is intentional; and (v) has been made either (a) with the aim of furthering the criminal activity or criminal purpose of the group; or (b) in the knowledge of the intention of the group to commit the crime (subjective elements).
52. The Chamber recalls its findings in section II that there are reasonable grounds to believe that crimes within the jurisdiction of the Court were committed. The Chamber has also found in paragraph 41 of the present decision that there are reasonable grounds to believe that these crimes have been cornmitted, pursuant to a common plan, by a group of persons acting in a concerted manner.
53. The Chamber is of the view that there are reasonable grounds to believe that Sang intentionally contributed to the commission of the crimes and his contribution was made, by at least, knowing of the intention of Ruto and Kosgey to commit the crimes against humanity discussed earlier. This conclusion may be deduced from the fact that he participated in the meetings of 30 December 2006 and 2 November 2007, during which the different aspects of planning to attack the Kikuyus were developed. Moreover, the material presented provides reasonable grounds to believe that Sang, by virtue of his influence in his capacity as a Kass FM radio broadcaster contributed in: (i) placing Kass FM at the disposal of the organization; (ii) advertising the organization's meetings; (iii) fanning violence through spreading hate messages and explicitly revealing a desire to expel the Kikuyus; and (iv) broadcasting false news regarding alleged murder(s) of Kalenjin people in order to inflame the atmosphere.^^ Accordingly, the Chamber finds reasonable grounds to believe that Sang is criminally responsible under article 25(3) (d) of the Statute for the crimes against humanity committed as discussed in section II above.
IV. Whether the requirements to issue summons to appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang have been met
54. The Chamber notes that according to article 58(7) of the Statute, summonses to appear for Ruto, Kosgey and Sang shall be issued, if it is satisfied that there are reasonable grounds to believe that these persons have committed the crimes alleged in the Prosecutor's Application and that summonses are sufficient to ensure their appearance before the Court.
55. The Chamber has already determined that there are reasonable grounds to believe that criminal responsibility under article 25(3)(a) and (d) of the Statute can be attributed to the persons named in the Prosecutor's Application for the occurrence of the crimes against humanity discussed in section II above. Yet, for summonses to be issued, article 58(7) still requires the Chamber to be satisfied that such an option is sufficient to ensure the persons' appearance before the Court.
56. Based on the information submitted in the Prosecutor's Application, the Chamber is satisfied that the issuance of summonses to appear for Ruto, Kosgey and Sang is sufficient to ensure their appearance before the Court. The Chamber concurs with the Prosecutor that, at this stage, there is no indication that Ruto, Kosgey and Sang, are either perceived as flight risks or likely to evade personal service of the summonses or refrain from cooperating if summoned to appear. This is without prejudice to the Chamber's competence to revisit its finding either proprio motu or in response to a request submitted by the Prosecutor. Should Ruto, Kosgey and Sang fail to appear on the date specified in the summonses or to comply with the conditions imposed in the operative part of this decision, the Chamber reserves the right to replace the summonses to appear with warrants of arrest under article 58 of the Statute and rule 119(4) of the Rules of Procedure and Evidence (the "Rules").
V. Conclusion
57. In view of the foregoing, the Chamber is satisfied that there are reasonable grounds to believe that, from 30 December 2007 until end of January 2008, Ruto and Kosgey are criminally responsible as indirect co-perpetrators under article 25(3)(a) of the Statute, and that Sang is criminally responsible as having contributed to crimes committed by a group of persons within the meaning of article 25(3)(d) of the Statute, in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town, in the Uasin Gishu and Nandi Districts, Republic of Kenya, for the following acts constituting crimes against humanity: (i) murder within the meaning of article 7(l)(a) of the Statute (Count 1); (ii) forcible transfer of population within the meaning of article 7(l)(d) of the Statute (Count 2); (iii) persecution within the meaning of article 7(1 )(h) of the Statute (Count 4).
59. The Chamber therefore decides to issue summonses to appear, pursuant to article 58(7) of the Statute, for the three persons, being satisfied that this measure is sufficient to ensure their appearance before the Court.
FOR THESE REASONS, THE CHAMBER, BY MAJORITY, HEREBY SUMMONS
William Samoei Ruto, born on 21 December 1966 in Kamagut village, Kenya, currently a suspended Minister of Higher Education, Science and technology of the Republic of Kenya;
Henry Kiprono Kosgey, born on 14 July 1947 Nandi district, Kenya, currently Minister of Industrialization of the Republic of Kenya and the Chairman of the ODM; and
Joshua Arap Sang, born in Kitale, Trans-Nzoia District, Kenya, currently the head of operations at Kass FM in Nairobi, the Republic of Kenya; to APPEAR before the Court on Thursday, 7 April 2011 at 9.30 hours for the purposes of the hearing to be held pursuant to article 60 of the Statute and rule 121(1) of the Rules; ORDERS
William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, without prejudice to further decisions of the Chamber in this respect: (i) to have no contact directly or indirectly with any person who is or is believed to be a victim or a witness of the crimes for which William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang have been summoned; (ii) to refrain from corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, or tampering with or interfering with the Prosecution's collection of evidence; (iii) to refrain from committing crime(s) set forth in the Statute; and (iv) to attend all required hearings at the International Criminal Court. ORDERS the Registrar to serve the present summonses on William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, as required by article 58(7) of the Statute and in accordance with regulation 31 (3) (b) of the Regulations of the Court. ORDERS the Registrar, in accordance with regulation 110 of the Regulations of the Court, to make, where necessary, a request for cooperation to the Republic of Kenya in conformity with articles 93 ( 1) (d) and 99 (1) of the Statute.
Judge Hans-Peter Kaul shall issue a dissenting opinion in due course.
Done in both English and French, the English version being authoritative. Judge Ekaterini TrendafjJeya' Presiding Judge/ Judge Hans-Peter Kaul Judge Judge Cuno Tarfusser Judge
Dated this Tuesday, 8 March 2011 At The Hague, The Netherlands
No. ICC-01/09-01/11 24/24 8 March 2011
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Post by job on Mar 8, 2011 23:33:46 GMT 3
Cour Pénale Internationale / International Criminal Court
Original: English No.: ICC-01/09-02/11
Date: 8 March 2011
PRE-TRIAL CHAMBER II Before: Judge Ekaterina Trendafilova. Presiding Judge Judge Hans-Peter Kaul Judge Cuno Tarfusser
SITUATION IN THE REPUBLIC OF KENYA IN THE CASE OF THE PROSECUTOR V. FRANCIS KIRIMIMUTHAURA, UHURU MUIGAIKENYATTA AND MOHAMMED HUSSEIN ALI
Public Document Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein AliDecision to be notified, in accordance with regulation 31 of the Regulations of the Court, to:
The Office of the Prosecutor Luis Moreno-Ocampo, Prosecutor Fatou Bensouda, Deputy Prosecutor Counsel for the Defence Legal Representatives of the Victims Legal Representatives of the Applicants Unrepresented Victims Unrepresented Applicants for Participation/Reparation The Office of Public Counsel for Victims The Office of Public Counsel for the Defence States Representatives Amicus Curiae REGISTRY Registrar & Deputy Registrar Silvana Arbia, Registrar Didier Preira, Deputy-Registrar Defence Support Section Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section
PRE-TRIAL CHAMBER II (the "Chamber") of the International Criminal Court (the "Court") renders this decision on the "Prosecutor's Application Pursuant to Article 58 as to Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali" (the "Application").
1. On 31 March 2010, the Chamber issued its decision in which it granted, by majority, the Prosecutor's request to commence an investigation in the situation in the Republic of Kenya for crimes against humanity to the extent specified in the operative part of the said decision (the "31 March 2010 Decision").
2. On 15 December 2010, the Prosecutor submitted the Application requesting the Chamber to:
a) Find that there are reasonable grounds to believe that FRANCIS KIRIMI MUTHAURA, UHURU MUIGAI KENYATTA and MOHAMMED HUSSEIN ALI committed crimes within the jurisdiction of the International Criminal Court and find that the issuance of summonses to appear is appropriate;
b) Issue summonses to appear for FRANCIS KIRIMI MUTHAURA, UHURU MUIGAI KENYATTA and MOHAMMED HUSSEIN ALI; and
c) Direct the Registry, in consultation and coordination with the Prosecution, to prepare and transmit a request for summonses to appear for FRANCIS KIRIMI MUTHAURA, UHURU MUIGAI KENYATTA and MOHAMMED HUSSEIN ALI.3
3. The Prosecutor also requested that the Chamber issues the summonses to appear for the three persons subject to a number of conditions outlined in paragraph 208 of the Application.
4. On 16 February 2011, the Chamber requested the Prosecutor to submit all witnesses' statements which he relies on for the purposes of his Application under article 58 of the Statute, no later than 23 Febmary 2011 (the "16 February 2011 Decision").
5. On 23 February 2011, the Chamber received the witnesses' statements as requested in the 16 February 2011 Decision.
6. For the sake of ruling on the Prosecutor's Application, the Chamber shall examine in a chronological order the following elements: (i) jurisdiction and admissibility; (ii) whether there are reasonable grounds to believe that one or more crimes outlined in the Prosecutor's Application have been committed; (iii) whether there are reasonable grounds to believe that Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (respectively, Muthaura, Kenyatta and Ali) are criminally responsible for the crimes presented in the Prosecutor's Application; and (iv) whether the requirements to issue summons to appear for Muthaura, Kenyatta and Ali have been met.
I. Jurisdiction and admissibility
7. Article 19(1) of the Statute provides that: "The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17".
8. The Chamber considers that, regardless of the mandatory language of article 19(1) of the Statute, which requires an examination of whether the Court has the competence to adjudicate the case under consideration, any judicial body has the power to determine its ov^ni jurisdiction, even in the absence of an explicit reference to that effect. This is an essential feature in the exercise by any judicial body of its functions and is derived from the well-recognised principle of la compétence de la compétence/
9. The phrase "satisfy itself that it has jurisdiction" also entails that the Court must 'attain the degree of certainty' that the jurisdictional parameters set out in the Statute have been satisfied.^ Thus, the Chamber's determination as to whether it has jurisdiction over the case against Muthaura, Kenyatta and Ali is a prerequisite for examining the Prosecutor's Application and in turn, the issuance or not of summonses to appear against those persons pursuant to article 58 of the Statute.
10. In its 31 March 2010 Decision, the Chamber has examined the different facets of jurisdiction in terms of place {ratione loci, le, in the Republic of Kenya), time {ratione temporis, le. crimes allegedly committed after 1 June 2005), and subject-matter {ratione materiae, i.e. crimes against humanity). It has also defined the scope of the Prosecutor's investigation with respect to the situation under consideration in view of the above-mentioned three jurisdictional prerequisites, namely the territorial, temporal and material parameters of the situation. It found that all the requirements have been met which led it to authorise the Prosecutor to commence an investigation into the situation in the Republic of Kenya in relation to "crimes against humanity within the jurisdiction of the Court committed between 1 June 2005 and 26 November 2009".
11. In the context of the present decision, the Chamber has reviewed the Application and the supporting material and is of the view that, since the Prosecutor has adhered to the Court's territorial, temporal and material parameters defining the situation as confirmed in the 31 March 2010 Decision, it finds no need to reiterate its finding and provide a further detailed assessment of the question of jurisdiction of the cases arising from that situation at this stage. In light of the foregoing the Chamber finds that it has jurisdiction to adjudicate the case which is the subject of the Prosecutor's Application.
12. Regarding admissibility, the second sentence of article 19(1) of the Statute dictates that an admissibility determination of the case is only discretionary at this stage of the proceedings, in particular when triggered by the proprio motu powers of the Chamber. Accordingly, the Chamber shall not examine the admissibility of the case at this phase of the proceedings.
II. Whether there are reasonable grounds to believe that one or more of the crimes presented in the Prosecutor's Application have been committed
13. In his Application, the Prosecutor alleged that crimes against humanity have been committed in different locations in the Republic of Kenya as follows:
Count 1
Murder constituting a crime against humanity (Articles 7(l)(a) and 25(3)(a) or (d) of the Statute)
From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI, as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely the murder of civilian supporters of the Orange Democratic Movement political party in or around locations including Kisumu town (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(l)(a) and 25(3)(a) or (d) of the Rome Statute.
Count 2
Deportation or forcible transfer of population constituting a crime against humanity (Articles 7(l)(d) and 25(3)(a) or (d) of the Statute)
From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI,as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely the deportation or forcible transfer of civilian population supporting the Orange Democratic Movement political party in or around locations including Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(l)(d) and 25(3)(a) or (d) of the Rome Statute.
Count 3
Rape and other forms of sexual violence constituting a crime against humanity (Articles 7(l)(g) and 25(3)(a) or (d) of the Statute)
From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI,as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely rape and other forms of sexual violence against civilian supporters of the Orange Democratic Movement political party in or around locations including Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(l)(g) and 25(3)(a) or (d) of the Rome Statute.
Count 4
Other inhumane acts constituting a crime against humanity (Articles 7(l)(k) and 25(3)(a) or (d) of the Statute)
From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI,as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely the inflicting of great suffering and serious injury to body or to mental or physical health by means of inhumane acts upon civilian supporters of the Orange Democratic Movement political party in or around locations including Kisumu town (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(l)(k) and 25(3)(a) or (d) of the Rome Statute.
Count 5
Persecution as a crime against humanity (Articles 7(l)(h) and 25(3)(a) or (d) of the Statute)
From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI,as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely persecution, when co-perpetrators and/or persons belonging to their group intentionally and in a discriminatory manner targeted civilians based on their political affiliation, committing murder, rape and other forms of sexual violence, other inhumane acts and deportation or forcible transfer, in or around locations including Kisumu town (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(l)(h) and 25(3)(a) or (d) of the Rome Statute.
14. The Chamber notes that the Prosecutor's allegations relate to events that occurred at different times in different regions of the Republic of Kenya. The material presented at this stage does not indicate a sufficient link between the events in Nakuru and Naivasha, on the one hand, and those in Kisumu and Kibera, on the other hand, as to enable the Chamber to assess them in the course of one and the same analysis. Accordingly, the Chamber will at first proceed to the question whether there are reasonable grounds to believe that the alleged crimes against humanity within the jurisdiction of the Court have been committed in Nakuru and Naivasha. The events that allegedly took place in Kisumu and Kibera will be examined thereafter.
15. The Prosecutor submitted that the crimes allegedly committed in Nakuru and Naivasha occurred in the context of a widespread and systematic attack against the civilian population carried out by the Mungiki and pro-Party of National Unity (PNU) youth against perceived Orange Democratic Movement (ODM) supporters, pursuant to an organizational policy.
16. The Chamber recalls its legal analysis and findings on the law (as opposed to the facts) concerning the contextual elements of the crimes against humanity as conducted in its previous decisions, including the 31 March 2010 Decision, and sees no reason either to reiterate or to depart from them.
17. On the basis of the Application, the information and the evidence presented (collectively, the "material"), the Chamber finds that there are reasonable grounds to believe that from on or about 24 January 2008 until 31 January 2008, the Mungiki criminal organization carried out an attack against the non-Kikuyu population perceived as supporting the ODM (mostly belonging to Luo, Luhya and Kalenjin ethnic groups) in Nakuru and Naivasha. According to the material presented, the events in Nakuru resulted in at least 112 deaths, 39 reported cases of rape, at least five cases of forcible circumcision and the displacement of thousands of people. With respect to the events taking place in Naivasha, the material made available to the Chamber indicates that at least 40 deaths occurred as a result of the Mungiki attack, along with at least four cases of forcible circumcision of Luo men! and the displacement of up to 10,000 residents.
18. Thus, the Chamber is satisfied, to the requisite threshold, that the events described in the preceding paragraph constitute an "attack" within the meaning of article 7(1) of the Statute. The Chamber concurs with the Prosecutor in that the targeted population was civilian, distinguished by virtue of its perceived political affiliation with the ODM. It is also sufficiently sustained by the material presented that such perception of political affiliation was largely rooted in ethnic divisions.
19. With respect to the statutory requirement that an attack against a civilian population be widespread or systematic, the material presented first reveals the large-scale nature of the attack as well as a high number of resultant victims. The Chamber thus finds that there are reasonable grounds to believe that the attack in Nakuru and Naivasha was widespread. Moreover, the material submitted shows that the attack by the Mungiki in Nakuru and Naivasha was organized and followed a consistent pattern, which is demonstrated by the fact that the attackers utilized means to distinguish potential targets, such as employing local guides or identifying residents by their native language. The Chamber thus finds that there are also reasonable grounds to believe that the attack in Nakuru and Naivasha was systematic.
20. The Chamber is also satisfied that there are reasonable grounds to believe that the attack was carried out pursuant to an organizational policy of the Mungiki. Due to the particulars of the events at hand, the Chamber will first give reasons as to why it considers the Mungiki to qualify as an "organization" under article 7(2) (a) of the Statute, before proceeding to the evaluation as to the existence of a policy.
21. As previously clarified by the Chamber, the distinction between "organizations" under article 7(2)(a) of the Statute and other groups that do not amount to such qualification should be drawn on whether the group has the capability to perform acts which infringe on basic human values. In this respect, the Chamber, in its 31 March 2010 Decision, listed a series of factors that may be taken into account with a view to conducting such determination. Among those factors, inter alia, the following are included: (i) whether the group is under a responsible command, or has an established hierarchy; (ii) whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population; (iii) whether the group has criminal activities against the civilian population as a primary purpose; and (iv) whether the group articulates, explicitly or implicitly, an intention to attack a civilian population.
22. In this regard, the Chamber finds that there are reasonable grounds to believe that the Mungiki operate as a large and complex hierarchical structure featuring various levels of command and a clear division of duties in the command structure. Furthermore, the material presented illustrates that obedience to the internal rules of the Mungiki is achieved by way of strict disciplinary measures. The material also shows the existence of a trained militant wing of the Mungiki, which is employed to carry out violent operations, including executions. The extent of the power of the Mungiki is sustained by the available material which demonstrates the Mungiki's control over core societal activities in many of the poor residential areas, particularly in Nairobi. In this regard, according to the material presented, the Mungiki, inter alia: (i) control and provide social services such as electricity, water and sanitation;^^ (ii) administer criminal justice through local chairmen who act as judges in their communities;^! and (iii) control the transport sector and other business activities, where they provide informal employment for members.^^ The material shows that to support such activities, the Mungiki collect informal taxes in the areas under their control.^^ In light of the foregoing, the Chamber is of the opinion that the material submitted provides reasonable grounds to believe that the Mungiki qualify as an organization within the meaning and for the purposes of article 7(2) (a) of the Statute.
23. Turning now to the policy requirement, the Chamber is guided in its conclusion by the material relating to the occurrence, prior to the attack, of planning meetings, locally in Nakuru and Naivasha as well as in Nairobi.^^ The material also provides reasonable grounds to believe that: (i) the majority of the attackers had been ferried from elsewhere prior to the attack;^^ (ii) in the period immediately preceding the events, large quantities of crude weapons were bought and distributed to attackers;^^ and (iii) leaflets announcing the attack were circulated among the targeted population.^^ There are thus reasonable grounds to believe that the attack in Nakuru and Naivasha was carried out pursuant to a policy established to that effect by the Mungiki organization.
24. The Chamber further notes the Prosecutor's mentioning of the inactivity of the Kenyan Police Forces during the attack in Nakuru and Naivasha and the references to this effect in the material presented. However, the Prosecutor explicitly submitted that the attack occurred pursuant to an "organizational" policy, without alleging the existence of a State policy by abstention. Accordingly, the Chamber will not entertain this issue. This is without prejudice to further submissions in this regard to be considered by the Chamber in the future.
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Post by job on Mar 8, 2011 23:34:06 GMT 3
25. With respect to the alleged underlying acts constituting crimes against humanity, the Chamber is satisfied, on the basis of the examination of the facts referred to in paragraph 17 above, that there are reasonable grounds to believe that murder and forcible transfer of population as acts constituting crimes against humanity were committed as part of the attack against the civilian population in Nakuru and Naivasha (Counts 1 and 2).
26. The Chamber also finds reasonable grounds to believe that rape as an act constituting a crime against humanity was committed as part of the attack in Nakuru (Count 3). Conversely, the Chamber notes that the Prosecutor failed to provide evidence substantiating his allegation that rape was committed as part of the attack in Naivasha. Consequently, and without prejudice to new evidence being submitted at a later stage of the proceedings, the Chamber finds that there are no reasonable grounds to believe that rape as an act constituting crimes against humanity was committed in Naivasha.
27. The Chamber notes that the Prosecutor alleged that, in addition to rape, other forms of sexual violence were committed during the attack. In this regard, it appears from his Application that, in the Prosecutor's view, the acts of forcible circumcision of Luo men constitute such "other forms of sexual violence" within the meaning of article 7(l)(g) of the Statute. In the Chamber's view, however, the acts of forcible circumcision cannot be considered acts of a "sexual nature" as required by the Elements of Crimes but are to be more properly qualified as "other inhumane acts" within the meaning of article 7(l)(k) of the Statute. The Chamber reaches this conclusion in light of the serious injury to body that the forcible circumcision causes and in view of its character, similar to other underlying acts constituting crimes against humanity. For this reason, and on the basis of the determination of facts above in paragraph 17, the Chamber concludes that there are reasonable grounds to believe that other inhumane acts as an act constituting a crime against humanity were committed as part of the attack against the civilian population in Nakuru and Naivasha (Count 4).
28. Finally, with respect to the Prosecutor's allegation that persecution as an act constituting a crime against humanity was also committed during the attack described above, the Chamber considers that the available material provides reasonable grounds to believe that the acts of murder, forcible transfer of population, rape and other inhumane acts were committed against a collectivity identified on political grounds by reason of its perceived affiliation with the ODM. Therefore, the Chamber finds that there are reasonable grounds to believe that persecution as an act constituting a crime against humanity was committed as part of the attack against the civilian population in Nakuru and Naivasha (Count 5).
29. Having analyzed the Prosecutor's allegations and the material presented in relation to the events in Nakuru and Naivasha, the Chamber now turns to the events in Kisumu and Kibera that the Prosecutor likewise alleged to constitute crimes against humanity.
30. The Chamber finds that the material presented by the Prosecutor provides reasonable grounds to believe that in late December 2007 and in January 2008, Kenyan police used excessive force, in particular live ammunition, against the civilian residents of Kisumu, which resulted in over 60 deaths.^^ In addition, there are reasonable grounds to believe that from late December 2007 until early January 2008 and again in mid-January 2008, Kenyan police raided the slums of Kibera and that this resulted in deaths, injuries and rapes. The material also provides reasonable grounds to believe that, during that period, the Mungiki perpetrated acts of violence against the civilian population of Kibera.
31. With respect to these events in Kisumu and Kibera, the Chamber notes that the Prosecutor, although mentioning in his Application that the violence was executed by the Kenyan Police Forces, failed to provide an accurate factual and legal submission which would require the Chamber to examine whether the acts of violence were part of an attack pursuant to or in furtherance of a State policy.
32. Apart from the foregoing, it is even more compelling that the material presented by the Prosecutor does not provide reasonable grounds to believe that the events which took place in Kisumu and/or in Kibera can be attributed to Muthaura, Kenyatta and/or Ali under any mode of liability embodied in article 25(3) of the Statute.
33. For these reasons, the Chamber deems it unnecessary to proceed with any further analysis and legal qualification of the events which occurred in Kisumu and Kibera. This is without prejudice to further submissions in this regard to be considered by the Chamber in the future.
IIL Whether there are reasonable grounds to believe that Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali are criminally responsible for the crimes alleged in the Prosecutor's Application
34. The Prosecutor alleged that Muthaura, Kenyatta and Ali are criminally responsible for the crimes against humanity alleged under the different counts presented to the Chamber either as indirect co-perpetrators pursuant to article 25(3)(a) of the Statute or, in the alternative, as having contributed to a crime committed by a group of persons under article 25(3)(d) of the Statute.
35. The Chamber recalls its finding in the confirmation of charges decision concerning the Prosecutor v. Jean-Pierre Bemba, where it acknowledged that the concept of co-perpetration (joint commission) whether direct or indirect embodied in article 25(3)(a) of the Statute and reflected in the words "[committing] jointly with another or through another person" must go together with the notion of "control over the crime" .
36. The Chamber also recalls that the mode of liability of indirect co-perpetration consists of the following elements: (i) the suspect must be part of a common plan or an agreement with one or more persons; (ii) the suspect and the other coperpetrator( s) must carry out essential contributions in a coordinated manner which result in the fulfilment of the material elements of the crime; (iii) the suspect must have control over the organisation; (iv) the organisation must consist of an organised and hierarchal apparatus of power; (iv) the execution of the crimes must be secured by almost automatic compliance with the orders issued by the suspect; (v) the suspect must satisfy the subjective elements of the crimes; (vi) the suspect and the other co-perpetrator(s) must be mutually aware and accept that implementing the common plan will result in the fulfilment of the material elements of the crimes; and (vii) the suspect must be aware of the factual circumstances enabling him to exercise joint control over the commission of the crime through another person(s).
37. On the basis of the material provided by the Prosecutor, the Chamber finds that there are reasonable grounds to believe that a series of meetings were held between, at least, mid-November 2007 and January 2008 between, inter alia, Muthaura, Kenyatta and members of the Mungiki, wherein the retaliatory attack in the Rift Valley was planned.According to the material presented, it was envisaged at the meetings that the Mungiki would carry out the attack with the purpose of keeping the PNU in power, in exchange for an end to government repression and protection of the Mungiki's interests. The Chamber is therefore of the view that there are reasonable grounds to believe that a common plan of committing the alleged crimes was agreed upon among Muthaura, Kenyatta, Mungiki representatives and others.
38. Conversely, the Chamber does not find at this stage that the material presented by the Prosecutor provide reasonable grounds to believe that Ali participated in the common plan, i.e. that he agreed with the other members of the plan, sharing the same intent, to commit the crimes against humanity referred to in the previous section. For this reason, the Chamber will not examine the remaining elements of indirect co-perpetration with respect to All's alleged individual criminal responsibility, but will proceed in this section only with regard to Kenyatta and Muthaura. Thereafter, the Chamber will examine whether there are reasonable grounds to believe that Ali in any other way contributed to the commission of the crimes by a group of persons acting with a common purpose, as alternatively alleged by the Prosecutor under article 25(3)(d) of the Statute.
39. In his Application, the Prosecutor alleged that both Kenyatta and Muthaura performed essential tasks in the implementation of the common plan. The Chamber finds that there are reasonable grounds to believe that Kenyatta and Muthaura, as part of the common plan, had agreed to fulfill the material elements of the alleged crimes by using their authority respectively over the Mungiki and over the Kenyan Police Forces.
40. Regarding Kenyatta's role in the implementation of the common plan, the Prosecutor alleged that his tasks mainly consisted in securing the cooperation of the Mungiki criminal organization for the perpetration of the crimes agreed as part of the common plan. The Chamber is of the view that there are reasonable grounds to believe that indeed Kenyatta: (i) organized and facilitated, on several occasions, meetings between powerful pro-PNU figures and representatives of the Mungiki, thus making possible the very conception of the common plan referred to above;! (ii) supervised the preparation and coordination of the Mungiki in advance of the attack; (iii) contributed money towards the retaliatory attack perpetrated by the Mungiki in the Rift Valley. The Chamber is thus of the view that there are reasonable grounds to believe that the contribution given by Kenyatta to the implementation of the common plan was essential.
41. In this regard, the Chamber recalls its previous findings as to the organized and hierarchical structure of the Mungiki. There are also reasonable grounds to believe that Kenyatta had control over the Mungiki organization and that the commission of the crimes was secured by its members' almost automatic compliance with Kenyatta's orders. This emerges, to the requisite threshold, from the material submitted by the Prosecutor that indicate Kenyatta's powerful position within the Mungiki organization that have received from him protection and patronage on several occasions. For instance, the material available shows that in exchange of this protection and patronage, Kenyatta's candidacy for the Office of President in the 2002 general election was publicly endorsed by the Mungiki. There are thus reasonable grounds to believe that Kenyatta exercised over the Mungiki a control that amounted to the "control over the organization" as required for the purposes of establishing individual criminal liability under article 25(3)(a) of the Statute.
42. With respect to Muthaura, the material presented indicates that he personally led, therefore exercising a coordinating role within the organization, a number of meetings between prominent PNU members and Mungiki members wherein the common plan and its implementation were agreed upon. The material submitted also shows that Muthaura, in at least one occasion, directly paid a significant sum of money to Mungiki representatives at the conclusion of one of the planning meetings held in November 2007. Furthermore, the Chamber recalls that, at the relevant time, Muthaura held the position of Head of the Public Service and Secretary to the Cabinet, as well as of Chairman of the National Security and Advisory Committee. There are reasonable grounds to believe that Muthaura, by virtue of his position, exercised direct authority over the Kenyan Police Forces,^^ which secured automatic compliance with his orders. Thus the Chamber finds reasonable grounds to believe that Muthaura used his authority to ensure that the Kenyan Police Forces did not interfere with the commission of the crimes directly perpetrated by the Mungiki.
43. In light of the foregoing, the Chamber is satisfied that are reasonable grounds to believe that Muthaura had the power to frustrate the commission of the crimes in the way they were committed by not performing his tasks and that his contribution was thus essential.
44. In view of the above, the Chamber finds that the submitted material provides reasonable grounds to believe that: (i) a common plan that included the commission of the alleged crimes had been agreed among Kenyatta, Muthaura and others; (ii) Kenyatta and Muthaura, as part of the implementation of such common plan, performed coordinated essential tasks, respectively through the Mungiki and the Kenyan Police Forces; (iii) Kenyatta and Muthaura exercised joint control over the commission of these crimes and were aware of the circumstances enabling them to jointly exercise such control; (iv) Kenyatta and Muthaura were mutually aware and accepted that the implementation of the common plan, by way of performing their coordinated essential tasks, would have resulted in the fulfillment of the material elements of the alleged crimes; and (v) Kenyatta and Muthaura intended the crimes to be committed and were aware of the widespread and systematic nature of the attack committed against the civilian population, in the context of which the crimes were perpetrated.
45. For the foregoing reasons, the Chamber finds that there are reasonable grounds to believe that Kenyatta and Muthaura are criminally responsible as indirect coperpetrators under article 25 (3) (a) of the Statute for the crimes alleged by the Prosecutor in his Application under article 58 of the Statute.
46. As found above, the Chamber is of the view that the material submitted by the Prosecutor is not sufficient to establish reasonable grounds to believe that Ali can be held responsible as indirect co-perpetrator under article 25(3)(a) of the Statute. The Prosecutor alleged, in the alternative, that Ali is criminally responsible as having contributed to a crime committed by a group of persons within the meaning of article 25(3)(d) of the Statute.
47. This mode of liability has the following specific requirements: (i) a crime within the jurisdiction of the Court is attempted or committed; (ii) the commission or attempted commission of such a crime was carried out by a group of persons acting with a common purpose; (iii) the individual contributed to the crime in any way other than those set out in article 25(3)(a) to (c) of the Statute (objective elements); (iv) the contribution is intentional; and (v) the contribution has been made either (a) with the aim of furthering the criminal activity or criminal purpose of the group; or (b) in the l^nowledge of the intention of the group to commit the crime (subjective elements).
48. The Chamber recalls its findings in the preceding sections that there are reasonable grounds to believe that crimes within the jurisdiction of the Court were committed. The Chamber has also found that there are reasonable grounds to believe that the said crimes have been committed, pursuant to a common plan, by a group of persons acting in a concerted manner.
49. The Chamber is of the view that there are reasonable grounds to believe that Ali, before the commission of the crimes, was contacted by Muthaura who informed him in advance of the intention of the members of the common plan to commit the alleged crimes and instructed him to order the Kenyan Police Forces not to interfere with the perpetration of the crimes by the Mungiki. As demonstrated by the failure of the police to respond to the crimes being committed, there are reasonable grounds to believe that Ali, exercising his authority as the Commissioner of the Kenyan Police Forces, directed the Police not to obstruct the Mungiki from committing the crimes. There are thus reasonable grounds to believe that the contribution made by Ali to the commission of the alleged crimes was intentional and relevant enough so as to amount to a contribution "in any other way" within the meaning of article 25(3)(d) of the Statute.
50. Likewise, there are reasonable grounds to believe that All's contribution to the commission of the crimes was made with the awareness of the intention of the group to commit the said crimes. Therefore, the Chamber does not find necessary at this stage to assess whether the other form of subjective element set out in the alternative in sub-paragraph (i) of article 25(3)(d) of the Statute emerges, to the requisite threshold, from the material presented.
51. In view of the foregoing, the Chamber is satisfied that there are reasonable grounds to believe that Ali is criminally responsible under article 25(3)(d) of the Statute for having contributed to the commission of the crimes against humanity as alleged by the Prosecutor under the different counts presented to the Chamber.
52. The Chamber wishes to clarify that all the findings in the present section are without prejudice to further evidence at a later stage of the proceedings which would establish individual criminal responsibility for the crimes under a different mode of liability.
IV. Whether the requirements for the issuance of summons to appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali have been met
53. The Chamber notes that according to article 58(7) of the Statute, summonses to appear for Muthaura, Kenyatta and Ali shall be issued, if it is satisfied that there are reasonable grounds to believe that these persons have committed the crimes alleged in the Prosecutor's Application and that summonses are sufficient to ensure their appearance before the Court.
54. The Chamber has already determined that there are reasonable grounds to believe that criminal responsibility under article 25(3)(a) and (d) of the Statute can be attributed to the persons named in the Prosecutor's Application for the occurrence of the crimes against humanity discussed in section II above. Yet, for summonses to be issued, article 58(7) of the Statute still requires the Chamber to be satisfied that such an option is sufficient to ensure the persons' appearance before the Court.
55. The Chamber concurs with the Prosecutor that the issuance of a warrant of arrest is not necessary as neither Muthaura nor Kenyatta nor Ali are perceived to be a flight risk and that nothing currently indicates that they would evade personal service of the summons or refrain from cooperating if summoned to appear. Accordingly, the Chamber is satisfied that the issuance of summonses to appear for Muthaura, Kenyatta and Ali is sufficient to ensure their appearance before the Court. This is without prejudice to the Chamber's competence to revisit its finding either proprio motu or in response to a request submitted by the Prosecutor. Should Muthaura, Kenyatta and Ali fail to appear on the date specified in the summonses or to comply with the conditions to be imposed, the Chamber reserves the right to replace the summonses to appear with warrants of arrest under article 58 of the Statute and rule 119(4) of the Rules of Procedure and Evidence.
V. Conclusion
56. In view of the foregoing, the Chamber is satisfied that there are reasonable grounds to believe that Muthaura and Kenyatta are criminally responsible as indirect co-perpetrators under article 25(3)(a) of the Statute and that Ali is criminally responsible as having contributed to crimes committed by a group of persons within the meaning of article 25(3)(d) of the Statute for the following acts constituting crimes against humanity committed from on or about 24 January 2008 until 31 January 2008:
(i) murder within the meaning of article 7(1) (a) of the Statute (Count 1, only with respect to the murders committed in Nakuru and Naivasha);
(ii) forcible transfer of population within the meaning of article 7(l)(d) of the Statute (Count 2, with respect to the forcible transfer committed in Nakuru and Naivasha);
(iii) rape within the meaning of article 7(1 )(g) of the Statute (Count 3, only with respect to the rapes committed in Nakuru);
(iv) other inhumane acts within the meaning of article 7(l)(k) of the Statute (Count 4, only with respect to the acts committed in Nakuru and Naivasha);
(v) persecution within the meaning of article 7(l)(h) of the Statute (Count 5, only with respect to the acts committed in Nakuru and Naivasha).
57. The Chamber therefore decides to issue summonses to appear, pursuant to article 58(7) of the Statute, for the three persons, being satisfied that this measure is sufficient to ensure their appearance before the Court.
FOR THESE REASONS, THE CHAMBER, BY MAJORITY, HEREBY SUMMONS FRANCIS KIRIMI MUTHAURA, born on 20 October 1946 in Mariene, Kenya, currently holding the positions of Head of the Public Service and Secretary to the Cabinet of the Republic of Kenya; UHURU MUIGAI KENYATTA, born on 26 October 1961 in Nairobi, Kenya, currently holding the positions of Deputy Prime Minister and Minister for Finance of the Republic of Kenya; and MOHAMMED HUSSEIN ALI, born in 1956 in Eldoret, Kenya, currently holding the position of Chief Executive of the Postal Corporation of Kenya; to APPEAR before the Court on Thursday, 7 April 2011 at 14.30 hours for the purposes of the hearing to be held pursuant to article 60 of the Statute and rule 121(1) of the Rules;
I ORDERS
Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, without prejudice to further decisions of the Chamber in this respect:
(i) to have no contact directly or indirectly with any person who is or is believed to be a victim or a witness of the crimes for which Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali have been summoned; | I (ii) to refrain from corruptly influencing a witness, obstructing or interfering j with the attendance or testimony of a witness, or tampering with or i interfering with the Prosecution's collection of evidence; j i (iii) to refrain from committing crime(s) set forth in the Statute; \ (iv) to attend all required hearings at the International Criminal Court;
ORDERS the Registrar to serve the present summonses on Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, as required by article 58(7) of the Statute and in accordance with regulation 31(3)(b) of the Regulations of the Court;
ORDERS the Registrar, in accordance with regulation 110 of the Regulations of the Court, to make, where necessary, a request for cooperation to the Republic of Kenya in conformity with articles 93(l)(d) and 99(1) of the Statute.
Judge Hans-Peter Kaul shall issue a dissenting opinion in due course.Done in both English and French, the English version being authoritative.
Judge Ekaterina Turendafif(î|i^a Presiding Judge Judge Hans-Peter Kaul Judge Judge Cuno Tarfusser Judge
Dated this Tuesday, 8 March 2011
At The Hague, The Netherlands No. ICC-01/09-02/11 25/25 8 March 2011
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Post by mank on Mar 8, 2011 23:35:21 GMT 3
I have mixed reactions to this topic. On the one side I do not see what there is to celebrate - nothing against those who do. On the other, I am dissappointed to learn that the country's resources are likely to continue being wasted in fighting the ICC. The winning side of the mixed reactions is my wish that Ocampo may see what is being planned, and manage to impress on the Judges that the 6 should be accommodate in the Hague till the matter is decided in their favour, or till they expire if that be the decision then. For quite a while now Kenya has not engaged in much that did not revolve around strategy na kuropokwa about the Ocampo 6. I hope this helps us move on, and leave Ocampo's business to Ocampo.
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Post by tnk on Mar 8, 2011 23:44:00 GMT 3
there is a one page summary here icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0109/Situation+Index.htmICC-01/09-01/11 Case The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang William Samoei Ruto Currently a suspended Minister of Higher Education, Science and technology of the Republic of Kenya Summonses to appear: 8 March 2011 Henry Kiprono Kosgey (stepped aside) Currently Minister of Industrialization of the Republic of Kenya and the Chairman of the ODM Summonses to appear (issued): 8 March 2011 Joshua Arap Sang Currently the head of operations at Kass FM in Nairobi, the Republic of Kenya Summonses to appear: 8 March 2011 Counts The Pre-Trial Chamber II found reasonable grounds to believe that Ruto and Kosgey are criminally responsible as indirect co-perpetrators (i.e., committing crimes through another person(s)) in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer and persecution. The Pre-Trial Chamber II was satisfied that there were reasonable grounds to believe that Sang otherwise contributed to the commission of the crimes in accordance with article 25(3)(d) of the Rome Statute. ICC-01/09-02/11 Case The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai kenyatta and Mohammed Hussein Ali Francis Kirimi Muthaura Currently holding the positions of Head of the Public Service and Secretary to the Cabinet of the Republic of Kenya Summonses to appear: 8 March 2011 Uhuru Muigai Kenyatta Currently holding the positions of Deputy Prime Minister and Minister for Finance of the Republic of Kenya Summonses to appear: 8 March 2011 Mohammed Hussein Ali Currently holding the position of Chief Executive of the Postal Corporation of Kenya Summonses to appear: 8 March 2011 Counts Pre-Trial Chamber II found reasonable grounds to believe that Muthaura and Kenyatta are criminally responsible as indirect co-perpetrators in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts. The Chamber was satisfied that there were reasonable grounds to believe that Ali otherwise contributed to the commission of the crimes in accordance with article 25(3)(d) of the Rome Statute.
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Post by gachquota on Mar 8, 2011 23:48:37 GMT 3
I have mixed reactions to this topic. On the one side I do not see what there is to celebrate - nothing against those who do. On the other, I am dissappointed to learn that the country's resources are likely to continue being wasted in fighting the ICC. The winning side of the mixed reactions is my wish that Ocampo may see what is being planned, and manage to impress on the Judges that the 6 should be accommodate in the Hague till the matter is decided in their favour, or till they expire if that be the decision then. For quite a while now Kenya has not engaged in much that did not revolve around strategy na kuropokwa about the Ocampo 6. I hope this helps us move on, and leave Ocampo's business to Ocampo. Kwani who r u ? kwenda huko we got 2007 thugs period.
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Post by johnmaina on Mar 9, 2011 0:26:48 GMT 3
long live O campo and ICC and i hope there will be some justice for the deceased/alive victims.
For me this is the greatest birthday present as the summons falls on my birthday which i now hope will be turned into WARRANTS.
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Post by adongo23456 on Mar 9, 2011 1:43:20 GMT 3
I have mixed reactions to this topic. On the one side I do not see what there is to celebrate - nothing against those who do. On the other, I am disappointed to learn that the country's resources are likely to continue being wasted in fighting the ICC. The winning side of the mixed reactions is my wish that Ocampo may see what is being planned, and manage to impress on the Judges that the 6 should be accommodate in the Hague till the matter is decided in their favour, or till they expire if that be the decision then. For quite a while now Kenya has not engaged in much that did not revolve around strategy na kuropokwa about the Ocampo 6. I hope this helps us move on, and leave Ocampo's business to Ocampo. Mank, This is not "Ocampo's business". This is our country. This is our business. And I agree with Johns. That this could very well be one of the most important days in the political calender of country. It feels great to be Kenyan. It is indeed. But this is special moment for our nation. For the generations that have fought for a better country, a more just country, this is their day. For all the heroes and heroines of the Kenyan struggle many of whom gave their lives for justice, this is their day. For the 1,300 or so killed in the PEV mayhem, this is their day. For the women raped, some repeatedly as we saw in Maina Kiai's video, this is their day. For the children who lost their parents and who must live in perpetual horror, this is their day. For the burnt, the roasted children of our country this is their day.Many of them (freedom fighters, survivors and victims) did not know about Uhuru Kenyatta, did not know about William Ruto or Francis Muthaura and the three others, but they fought for the most part to end impunity and the culture of political godfathers in Kenya who kill, rob and rape our country at will and are above the laws of the land by the power of their positions in state the machines that run the nation. This whole ICC concrete decisions on summons and possibler arrest warrants on the Ocampo six, may be just a small slice of that hope of ending impunity in our country. But it is by far the biggest victory for the progressive forces in the country we all love love, regardless of our political positions as citizens of the great republic of Kenya. Coupled with the new constitution, Kenya is headed somewhere good. We do not know what will happen now that the summons have been issued. Crazy things may happen. But nothing will scare Kenyans. This was a hill we had to climb as a country. The nation is comfortable with the results. I suspect there are jubilations and celebrations everywhere, but tomorrow the nation is back to work. We have to help Ocampo to help us as a country. He is doing a good job and the ICC judges are doing a great job too. They were very specific with each ruling on each individual. If they didn't find the charges had been explained enough, they rejected them and allowed to Prosecutor if he so wishes to provide further evidence later. Where they found the charges and the evidence were warranted they accepted them and made their rulings without fear, favour or prejudice. One gets the feeling that this is going to be a straight forward court with no games and their purpose will be to achieve justice for the victims and survivors and to let the perpetrators know that they are no longer in charge, but rather the subjects of a fair trial. In any event these people are being charged with committing by far the worst crimes a human being can commit. They did so against fellow Kenyans for their own self interest. We as a country must never allow them to get away with it. That is why this is our business, more than Ocampo's. We as Kenyans must demand every piece of evidence all the way. Who planned what? Who paid money for what?. Who killed Kenyans? Why?. Who had weapons and how did the y get it? What did they do with weapons against Kenyans? Commit crimes? Against humanity? Those are the questions only ICC can answer. What is wrong with that? The world is saying; nothing!. Great. Bring back the shuttle and let's the gentlemen go to the Hague. Let's just hope that everything will be broadcast live. Knowing Kenyans, I think they will do it. Let's hear the truth. I think we will. The Nation is ready for it. Who is NOT? That is the big question. It will answered in both ways in a matter of days. Watch this space. It is the country of all Kenyans after all. We, as Kenyans, should all be happy for this day. Yes they are. Let's move the country forward. I think the nation can. I am very confident about my country and so I think are millions of other Kenyans of every tribe, ethnic group, gender and race. The nation looks good, doesn't it? adongo
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Post by reporter911 on Mar 9, 2011 4:10:29 GMT 3
JOB
This is the best part of the Summons in RED
55. The Chamber concurs with the Prosecutor that the issuance of a warrant of arrest is not necessary as neither Muthaura nor Kenyatta nor Ali are perceived to be a flight risk and that nothing currently indicates that they would evade personal service of the summons or refrain from cooperating if summoned to appear. Accordingly, the Chamber is satisfied that the issuance of summonses to appear for Muthaura, Kenyatta and Ali is sufficient to ensure their appearance before the Court. This is without prejudice to the Chamber's competence to revisit its finding either proprio motu or in response to a request submitted by the Prosecutor. Should Muthaura, Kenyatta and Ali fail to appear on the date specified in the summonses or to comply with the conditions to be imposed, the Chamber reserves the right to replace the summonses to appear with warrants of arrest under article 58 of the Statute and rule119(4) of the Rules of Procedure and Evidence.
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