Reconfirming My Position on the Ocampo Six And Why I Think All Six Walk, Or At Least 3 Do

09 Oct

The following is my response in other fora to two individuals who is mistaken that I have been inconsistent in my views on ICC and the Ocampo Six.

You are both operating on a false premise.

First, it does not mean one is right only if they stick to their original positions regardless of changed circumstances or availability of new information. Using that, namely, rigidity to original positions taken as a measure of consistency or right or wrong is wrong.

Second, if you read my legal analysis of the ICC case against Ruto in my blog “Who Is William Ruto” at I penned back in April, you’ll clearly see I conclude in that blog that Ruto will walk from the Hague. I also conclude Kosgey and Sang will equally walk because their defenses are closely related to Rutos.

I noted in that analysis that I did not analyze UK, Muthaura and Ali’s cases but I clearly hinted they, too, may walk on at least one technical defense I discuss in the blog.

I have also been very consistent in saying none of the Six will ever see the inside of jail in these cases.

You will note in the analysis, I left it open as to when Ruto, Kosgey and Sang (RKS) walk: before the confirmation, or after trial.

After the confirmation hearings for RKS, I blogged that their charges will be confirmed. This is because they did not attack the prosecutors case in a manner that would essentially result in dismissal of the cases against them.

In my blog yesterday, I allowed that one of the six may not have their charges confirmed and I can tell you now that’s Sang because I gleaned from the Ocampo interview that he bodged in the documentary presentation of Sang’s case.

That does not mean he is forever free, if he walks on this ground for he can be recharged with new evidence.

However, I maintain that all three walk after trial because of the defenses I discuss in my analysis.

The all three or each individually get nailed, of course, if they don’t mount the defense or others to overcome the charges.

It’s not unheard of or uncommon for defendants to be nailed for failure to raise a defense or effectively challenge a case and neither is it unheard of or uncommon for a prosecutor to loose a sure case for failure to effectively prosecute or simply by being overpowered by the defense or by simply fumbling a solid case.

These things happen very routinely and the Hague is no different.

Regarding UK, Muthaura and Ali (UMA)–no pun intended, the charges against all 3 will be confirmed.

As for the outcome at trial, I can’t really call it as authoritatively as I have the other three because I have not thoroughly analyzed their cases as I have the other.

I do see parallels in some of the defenses between the two groups of cases which can result in acquittal of UMA but that remains to be seen as to (a) they raise them and (b) how effectively.

Yesterday, I blogged as follows:

Ocampo is a good prosecutor but brilliance is not usually associated with prosecution; a prosecutor is either tough or not and that is measured by the number of convictions he or she exacts.

Those who think otherwise are mistaken; if you are looking for brilliance, go to a academia and private, not government practice.

That does not mean there are no brilliant prosecutors or brilliant lawyers in government service.

Ocampo should not have done the interview at all and if he had to, he should have done it in Spanish.

Conducting the interview in English he is not a master of made him come across as a bumbling buffoon which he  clearly is not.

He has already telegraphed what I have been saying all along and that is, let’s be prepared for some folks to walk and I think Ruto, Sang and Kosgey will walk, much less so the other two and even more less the other one.

It is not inconceivable that all but two would walk.

If this was a Kangaroo court, it will convict Ruto and UK and say, Case Closed.

This is not a Kangaroo court.

Given this record, you can clearly see I have been very consistent in my reasoning and views about this cases.

I have not changed my views like “Dutch weather” as my friend KM suggests.

Again, just so it’s clear, there is nothing wrong with changing views or analysis based on changed circumstances or new information.

Confirming something I left open regarding confirmation of the charges is not “changing like Dutch weather!”

I think you are mistaking the concept of changing one’s principles with changing viewpoints which are two different things: you can freely do the latter but not the former for doing the former is the proverbial being a wobbler–a no-no, especially in politics.

Ask Mitt Romney how he wishes this were not true.

Peace, Love and Unity



Posted by on October 9, 2011 in Law, Politics


Tags: , , , , , , , ,

2 responses to “Reconfirming My Position on the Ocampo Six And Why I Think All Six Walk, Or At Least 3 Do

  1. Paul

    October 11, 2011 at 2:47 AM

    Brother Omwenga, I actually did not follow what you are saying here in this blog. May be it is because of my impoverisment in Legal jargon. But when I read this blog in plain English Grammar, it sounds as though you are saying that of all the 6 suspects 5 will be acquitted and only one will be confirmed. At the same time I read some meaning that only Joshua Sang will acquitted and the rest will be confirmed.
    You are basing your argument on the premises that Ocampo did not a good Job. My questions to you are;
    1. From your understandng of what the ICC Court as an International court stands for, can it just issue Summonses to people without tangible evidence?
    2. Would it accept to finance a suspect like Joshua if they see no tangible evidence against him?
    3. What is your take on the defence of both trios’ insistance that Ocampo did not conduct full investigations when as a goverment, Kenya did not allow Ocampo to get statements from civil servants? Why did the security aparatus refuse to testify before Justice Rawal?

  2. Samuel N. Omwenga

    January 28, 2012 at 6:16 AM

    Brother Paul,

    Sorry I missed your post and thus my belated response to you.

    My position has been that charges against all but Sang will be confirmed and that in the end, Ruto, Kosgey and Sang will walk and even possibly the rest for technical legal reasons I have discussed elsewhere on these blogs.

    I was slightly off as the ICC has now confirmed charges for 4, not 5, including Sang, who I taught the prosecutor had fumbled in the presentation of his case but remember I noted what he would have had to do if the charges were not confirmed, is to simply firm up the case and present it again.

    Your second question regarding finance, yes, a tribunal does not look to the guilt or innocence of a person to decide whether to pay for their legal fees; in fact, a stronger case can be made tribunals should more favor paying legal fees for those who it believes are innocent.

    A tribunal agreeing to pay legal fees for a suspect is purely based on ability to pay or lack of it on the part of the suspect.

    The argument that Ocampo did not conduct a full investigation does not fly; he believes he has enough evidence to prosecute these cases and the court has now agreed.




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