Tag Archives: Ramush Haradinaj

Recent Court Documents in the 2 ICC Kenya Cases 20 November 2013

The Prosecutor in the Ruto/Sang case asked to appeal the decision allowing the disclosure of Prosecution Intermediaries to the Defence. The Trial Chamber rejected her request for leave.

The same Trial Chamber permitted the Government of Kenya to file observations on the effect of the Parliamentary resolutions seeking Kenya’s withdrawal from the ICC Treaty.

The Kenyatta defence asked the Trial Chamber for a stay of proceedings prior to trial due to what they allege has been abuse of process by the Prosecutor. They also wanted a evidential hearing to discuss these alleged abuses. Kenyatta’s lawyers claimed that, among other things, OTP-11 and OTP-12 conspired to tamper with evidence collection and interfere with potential defence witnesses.

The Prosecutor in the Kenyatta case asked the Trial Chamber for protective measures for its first ten witnesses, including witnesses 2, 11, 217, 232, 429, 430, 493, and 505. These measures would include voice and face distortion; pseudonyms and some in camera sessions (where sessions are closed from the public). Some of the protective measures will safeguard the witnesses who have been relocated, others are to protect persons who are not before the court. In addition witnesses 11, 217, 429, 430, 493 and 505 would, according to the OTP, need protection because the nature of their evidence may be self-incriminatory.

The Kenyatta Trial Chamber decided to excuse Kenyatta from being continuously present throughout his trial, except during:

i.                     the entirety of the opening statements of all parties and participants;

ii.                   the entirety of the closing statements of all parties and participants;

iii.                  when victims present their views and concerns in person;

iv.                 the entirety of the delivery of judgement in the case;

v.                   the entirety of the sentencing hearings (if applicable);

vi.                 the entirety of the sentencing (if applicable);

vii.                the entirety of the victim impact hearings (if applicable);

viii.              the entirety of the reparation hearings (if applicable); and

ix.                 any other attendance directed by the Chamber.

Kenyatta promptly filed a waiver of his right to be present at his trial.

Judge Ozaki dissented from the main judgement which largely mirrored and elaborated on the Ruto Absence decision. She, however, felt that there was no discretion granted to the court to waive the presence of the accused except in truly exceptional and limited circumstances such as a personal tragedy- such as in the trial of Jean-Pierre Bemba Gombo- or a national tragedy such as the Westgate Attack. Furthermore, granting a waiver to Kenyatta would violate the obligation to treat all the accused equally.

Judge Eboe-Osuji also attached a separate opinion to the decision. In it, he clearly shows the influence that the protests from the African Union and the member states have had on the question of how to treat Kenyatta and Ruto (always, Sang sits forgotten). Judge Eboe-Osuji not only felt it was worth mentioning the complaints extensively, but also argued that it might be wrong as a matter of law to ignore the views of the state parties on this particular issue of the permission granted to Ruto and Kenyatta to be absent from much of their trials.

To some extent I have sympathy with Judge Eboe-Osuji’s views: as I mentioned previously, the ICC was arguably too defensive in its initial appraisal of the complaints by African states: this may have given the impression that the court was not listening to criticism. In addition, I sympathise with Judges of the two Kenya Trial Chambers who must somehow drag these trials to conclusion in the face of two accused- William Ruto and Uhuru Kenyatta- who clearly regard the ICC as a pointless foreign annoyance now that the long-coveted offices of President and Deputy President have been attained.

The Judges see the danger that Ruto and Kenyatta present: that faced with a situation where they cannot perform both their duties to the court and to Kenyans, the two of them will not do the honourable thing and resign from office. More likely, they will resign from being ICC accused, abscond and hunker down to take the consequences.

But I think the trial chambers over-reached in their reading of the statute in order to allow prolonged absence for the two on the basis that the  ‘extraordinary functions’ of their state offices created exceptional circumstances that warranted such prolonged absence. Furthermore, the functions of Deputy President (DP), as defined in our Constitution (Chapter 9 Part 2), are arguably not as ‘extraordinary’ as the Judges in the Ruto Decision were led to believe when excusing Ruto from continuous presence at his trial. The constitution makes quite clear that Kenyatta has a deputised assistant and not a co-president, irrespective of internal power-sharing arrangements within the ruling coalition.

Yet ultimately, though not thrilled about the prospect of defendants absconding and the even less thrilled by the prospect of yet more ICC arrest warrants that might be ignored- the last thing we need is a UHURUTO-WATCH website- I think that the two Trial Chambers must simply take up the hard task of crafting another way to ensure the accused who hold office comply with their national and international duties. Success is not guaranteed, but the same could be said about any endeavour to bring justice for victims of international crimes.

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Statesmanship- A Role Model for Kenyatta and Ruto

By now, it’s been widely reported that William Ruto and Uhuru Kenyatta are teaming up in the coming election. It was telescoped long ago and dubbed the coalition of the accused. Strangely, the fact that two individuals awaiting trial for crimes against humanity can run and coordinate an election campaign is being held up by their supporters as a vindication of Kenyans’ sovereign freedom of choice.

But it doesn’t have to be this way. Yes, the two are innocent until proven guilty. Unless and until this presumption is overturned in a court of law, they retain all their civic rights and responsibilities (as consistent with the law). These rights include the right to run for office- unless a court of law determines that Chapter Six of the constitution bars them. But in all other respects these two politicians have as much right as the rest of the field of candidates to be in the game. Quite clearly, it is also in their private and personal interest to be successful candidates in next year’s elections.

It is the failure to distinguish between the public interest 40 million and the personal interests of 2 that taints their election campaign. Perhaps they should look to the example set by Ramush Haradinaj.

The name may not be familiar to many but he is a former Prime Minister of Kosovo who was recently acquitted by the International Criminal Tribunal for the Former Yugoslavia with respect to war crimes allegedly committed during the war between the Kosovo Liberation Army and the Serbian Security forces. In fact he was only Prime Minister for several months before he was indicted.

What did Haradinaj do when he received the indictment? Five days after the indictment was handed down, he voluntarily resigned from his post and spent over seven years clearing his name. He even underwent a re-trial. This is despite knowing that his popularity among Kosovar Albanians (the majority population in Kosovo) was such that he could conceivably have refused to resign and clung on to the Premiership. Yet it was clear, and he would have known, that clinging to the position of Prime Minister while on trial for such serious crimes would have killed any hope of reconciliation with Kosovar Serbs and would have kept the old resentments of the war alive in the public imagination every time he performed any public function as Prime Minister. It wasn’t a question of the presumption of innocence, but an exercise of sound judgement that is the hallmark of any genuine leader (or candidate for leadership).

Haradinaj has his flaws as a leader, but it is only when one sees that self-sacrifice in his resignation that one understands the selfishness of the TNA-URP ticket. By the way, with his innocence newly affirmed, Ramush Haradinaj intends to jump back into politics.

The Presidency, like the Premiership, is one of those rare jobs where the learning curve is steep yet there is very little ‘pre-job’ training available for aspirants. Which is why, in continuing to run their coalition campaign, both Kenyatta and Ruto make a good case for why they should not be anywhere near power. It’s a little late in the day to teach them good judgement, and a five year term ain’t near long enough to even make a start.

Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

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