So at last we have it. At 1:30pm Kenya time, the Presiding Judge of the International Criminal Court (ICC) sitting in The Hague, Justice Ekaterina Trendafilova from Bulgaria, flanked by Justice Cuno Tarfusser (Italy) and Justice Hans-Peter Kaul (Germany), began her summation of the ICC’s pre-trial findings into the six Kenyan defendants arraigned over allegations that they were involved with the post-election violence that exploded in Kenya after the announcement of the country’s election results on December 30, 2007.
In ‘Case 1’, on six charges, including ‘crime against humanity’, murder, deportation and persecution, the ICC found that there was “substantial grounds to believe” that in the case of former Education Minister William Ruto he bore “indirect” responsibility, and that the former head of operations at Kass FM, Joshua arap Sang “contributed to”, “the deaths of hundreds” and the “displacement of thousands” of Kambas, Kikuyus and Kisiis who were perceived at the time to be PNU supporters.
However, in the case of Tinderet MP Henry Kosgey the ICC found that the prosecution had “failed to satisfy evidential requirements” that he was involved and the court noted that the allegations against him had been based largely on the testimony of an anonymous witness.
In ‘Case 2’, on 10 charges of ‘crimes against humanity’, murder, deportation, rape and sexual violence, persecution and “other inhumane acts” against the Luhya, Luo and Kalenjin communities, who were perceived to be ODM supporters, the ICC found that in respect of Kenya’s Deputy Prime Minister Uhuru Kenyatta and the Head of Public Service Francis Muthaura, there were “substantial grounds” to charge them for “indirect” involvement but not so in the case of Major-General (Retired) Mohammed Hussein Ali, the former Commissioner of Police.
It was of great interest however, that only two of the judges fully agreed with the court’s decision. Justice Hans-Peter Kaul entered a dissenting view, namely that the crimes committed were not ‘crime against humanity’ but rather serious “common crimes” committed in Kenya.