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

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 http://omwenga.com 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

Omwenga

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Posted by on October 9, 2011 in Law, Politics

 

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Who Is William Ruto Part IV

Who Is William Ruto

Part IV

Four years after the eruption of post-election violence in Kenya (“PEV”), and after more than 2 years of Kenya’s inability or unwillingness to prosecute the perpetrators of the violence, the International Criminal Court (“ICC”) has summoned six suspects named by its Chief Prosecutor, Luis Moreno Ocampo (“the Chief Prosecutor” or “Ocampo”) as the most responsible for the violence. Ruto is among the six or the “Ocampo Six,” as they are collectively referred to. The other five suspects are Uhuru Kenyatta, Francis Muthaura, Henry Kosgey, Hussein Ali, and Joshua Sang. Immediately following the naming of the Ocampo Six, President Kibaki and his half of the coalition government went into full gear in efforts to defer the ICC prosecution of these cases. These efforts have, however, thus far been futile and the case is moving forward. The Ocampo Six are now scheduled to appear at the Hague this week to have the charges against them formally read to them.

In previous parts of this five part series, I have tried to describe who Ruto is and what led to his being charged at the Hague as well the politics of all of this. In this second to last part of this series, I am offering what Ruto may have as a defense against the charges he faces. I fully anticipate some may take this to be a contradiction, namely, why would I be so critical of Ruto as I have been, yet offer a defense for him (as opposed to offering a case why Ocampo should nail him to the wall). I don’t think the two positions I have taken are inconsistent in any way; I am aligned with the Orange Democratic Party (“ODM”) and Ruto was one of those who supported and campaigned on the ODM platform.

I actually had an occasion to meet Ruto and four of the Pentagon Five at the Fairview Hotel in Nairobi just before the elections in 07 and told a Kalenjin friend I was with immediately after the meeting that, looking at that table, and given Ruto’s discomfort with our presence, it was my conclusion that Ruto could not possibly be on that team for much long after the elections.

I based my assessment on what I observed with the four sitting at table and told my friend this: there was Ruto, looking at Ngilu, Mudavadi and Balala and visually Raila who was not present at the time; of the four, he was the most visibly annoyed with our briefly joining them (we were actually there to have an unrelated lunch at a table next to the gazebo table where they were seated so we did the obligatory hello as we were passing by and actually had a very good chat with all but Ruto who was mum).

Be as it may, we moved on to our table after the brief chat and there I told my friend what I observed and thought: knowing he was the youngest of the four sitting there and the fifth Pentagon member who was not present but in his mind, Ruto must have surely been thinking if each ruled as president at a minimum one term, that would translate to 25 years before his turn arrived, going by the politics of the oldest first; if each ruled for a maximum two terms, he was then looking at 50 years before his turn. If you factor in the opposition taking one or two of those terms, add at least five more years, which whichever way he looked at it, he couldn’t possibly wait that long.

For this reason, I told my friend Ruto would soon have to find a way to cut the line and this could not possibly happen in ODM. The only way he could not have been thinking about this, I told my friend, was if he was given a pacifier in the form of a premiership which Ruto now claims he was promised but not given, never mind the person who he claims promised him this could not have offered him this as he was himself the Prime Minister.

My assessment of Ruto back in December 2007 to my friend and others has turned out to quite the case and I am sure others saw the same thing as Ruto has for all practical purposes abandoned ODM and seeks another path to State House shorter than what chance he has through ODM. There is one little stumbling block in the way, however, and that is the ICC.

I will in another blog analyze the political implications of the prosecution of the Ocampo Six or more relevantly, the political implications of the prosecution of Ruto and Uhuru. In this next to final part of my series on Who Is William Ruto, however, I set forth what I believe to be his defense against the charges he faces at the Hague. As I have noted above, I fully anticipate some may not understand how I can be so critical of Ruto and yet offer a defense for him or even why offer a defense at all for someone accused of serious crimes like this.

There are two things I say in response to this: First, as I have noted above and elsewhere in my blog, I have nothing against Ruto personally and even if I strongly disagree or dislike a number of things Ruto has said or done politically or otherwise, I would nonetheless still defend him over what he is charged with as a matter of principle because the accusations against him relate to when he was waring the ODM badge of honor.

This is not to say the party had anything to do with what he is charged with; it did not.

Second, in all criminal proceedings, all accused must be deemed innocent until proven guilty therefore offering a defense for someone like Ruto is not a judgment of his guilt or innocence. A good example given by criminal law professors to First Year Law students to illustrate this concept is, imagine you have graduated, set up a solo practice and someone walks into your office and says they have shot and killed their neighbor; what do you do? All sort of fancy answers are given except the one the professor is looking for: asking the person how do they know they have shot and killed their neighbor? Someone else could have fired from another direction at the same time and his bullet hit the neighbor first and therefore they are guilty of murder not the prospective client!

Be as it may be, defending Ruto is a position I have maintained from even before Ruto was publicly named as a PEV suspect as those I talk to know. Indeed, I would still defend Ruto in principle even if he were to formally leave ODM and join PNU (which he has for all practical purposes done). I will also continue pointing out the wrongs he is committing, including his ill-advised obsession with “blocking” Raila in the false hopes and belief that he could be factored into the Kibaki succession equation from the PNU side as a reward for such efforts. I will another time write a blog trying to answer the question why do politicians get so gullible they don’t know when they are being used by other politicians or if they know they are being used what does it say about their character?

For now, let me address the question what then, is Ruto’s defense against the ICC charges? First, there is the time honored defense mastered by humanity from approximately the age of 2 and onwards regardless of fact when faced with an accusation and that is simply, “I did not do it.” Given the success of this defense or lack thereof through the ages, however, especially when given reason to believe one has done what he or she is accused of as in this case where the ICC has reason to believe and has charged Ruto of committing crimes against humanity, then a more substantive and persuasive defense is necessary.

(In Part V, I will present the Ruto defense as I see it)

 
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Posted by on April 4, 2011 in Siasa

 

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Who Is William Ruto, Part II

Who Is William Ruto

Part II

In order to understand the International Criminal Court (ICC) case against William Ruto, it is necessary to provide background on this case that involves five other Kenyan suspects. In sum, on November 26, 2009, ICC Chief Prosecutor Luis Moreno-Ocampo (“ICC Chief Prosecutor or Ocampo”) sought authorization from Pre-trial Chamber II of ICC to open an investigation in connection with crimes committed during the 2007-2008 post-election violence in Kenya (PEV).

As a signatory to the Rome Statute and hence a State Party to the ICC, Kenya accepts the jurisdiction of the Court over war crimes, crimes against humanity, and genocide committed on its territory or by one of its nationals, thereby opening the door for Ocampo’s investigation into PEV. As a matter of law and practice, however, ICC does not open an investigation unless the subject state is unwilling or incapable of investigating the crimes; ICC is in other words a tribunal of last resort with preference given to the member states to prosecute.

Consistent with this approach, Ocampo and the Kenya government agreed on July 3, 2009 that allowed Kenya one year to start such investigation and/or prosecution and further agreed that the one year deadline be set for September 2009.

In efforts to keep ICC at bay, and following this agreement, Constitutional amendments that would have established a special tribunal, as recommended by the Waki Commission, Waki Commission, an international commission of inquiry established by the Government of Kenya to investigate PEV, failed to get the requisite consensus in parliament by the September 2009, leading to Ocampo seeking formal authorization from ICC to start his investigation.

In order to decide whether to open an investigation, ICC pre-trial judges requested clarification and additional information from the prosecutor on February 18, 2010. On 3 March 2010, the Prosecution filed his response to this clarification request which essentially comprised of a list of six names he had singled out as the most responsible for PEV based on investigations.

Almost all of Ocampo’s evidence thus far is contained in six boxes the Chief Prosecutor received from the Waki Commission on July 16, 2009. The documentation included a sealed envelope containing a list of suspects identified by the Waki Commission as those most responsible for the violence. On March 31, 2010, the Pre-Trial Chamber II of (ICC) authorized Ocampo to open his case against the six suspect as he requested.

On December 15, 2010, Ocampo publicly named the six suspects that he has evidence to show that they bear the greatest responsibility for PEV. The six suspects are, Deputy Prime-Minister Uhuru Kenyatta, Industrialisation Minister Henry Kosgei (now suspended for unrelated criminal case), Higher Education Minister William Ruto (now suspended for unrelated criminal case), Head of Civil Service and Secretary to the Cabinet Francis Muthaura, former Police Commissioner Major-General Hussein Ali and a journalist who works with a local Kalenjin FM station Joshua Sang.

Meanwhile, as the ICC process was inching toward indictment of the “Ocampo Six,” as the six suspects are commonly referred to, the political dynamics on the ground in Kenya took a twist of historic significance: Ruto, who is accused of masterminding efforts to have Kibaki renounce his illegal swearing in and instead have Raila installed as duly elected president, now is fully aligned with the same Kibaki and has become one of, if not the fiercest critic and opponent of the same Raila he staunchly supported in his successful 2007 presidential bid and whose party he ran and won a parliamentary seat, which he still holds albeit by name only as clearly is not part of the party anymore. Ditto Henry Kosgey, albeit to a much, much lesser extent, having recently apparently only opted to rise and fall with his fellow tribesman Ruto than remain on course with ODM.

Although a more detailed analysis will follow elsewhere in this series, it must be noted here that Ruto abandoning Raila and aligning himself with Kibaki is classic opportunistic maneuver similar to his ironically abandoning Moi to join Raila. This is because no sooner Ruto worked himself close to Kibaki, Kibaki stepped up his efforts to shield the Ocampo Six from going to the Hague, an obviously greatly beneficial albeit sacrificial switch in loyalty for Ruto, but only if the switch pays off with his avoiding trial for PEV.

More specifically, when Ocampo announced his list of suspects and made it known the train had left the station, Kibaki lobbied members of the African Union (AU) to support his efforts to defer ICC prosecution of the case, which he easily obtained, given most of these African leaders know ICC is always a footstep behind any of them. Many believe Kibaki took this strategy because (1) two of the suspects, Muthaura and Uhuru are dear and close to him for many reasons personal and political and (2) having Ruto on his side is a good and valuable check against Raila for his own plans for his successor in the next elections and no one believes that to be Raila, even though Kibaki would not mind if Raila is, in fact, elected.

In any case, after obtaining AU cover, Kibaki launched a full-blown campaign many believe is a waste of tax-payers money and time to lobby the UN Security Council for deferment of the ICC cases because 3 of its permanent members, the US, Britain and France have all said they will not support Kibaki’s deferral request. Given it takes only one permanent member of the UN Security Council to veto any resolution voted on by the other members, it follows therefore that Kibaki’s efforts to lobby the UN Security Council are therefore a waste of time and money as many believe.

Meritorious or not, Kibaki’s case for deferral, which is not supported by Raila, his partner in the coalition government, is essentially as follows: allowing the cases to proceed at the Hague will result in violence by those opposed to the move in Kenya thereby creating instability. Kibaki alternatively argues that he should be given time to set-up a local tribunal to try the suspects.

Those opposed to the deferral, which by all accounts is the rest of the country other PNU strongholds and some Ruto supporters oppose the deferral for the opposite reasons, namely, Kibaki and his part of the coalition are not interested in the prosecution of these suspects at the Hague or anywhere else, including Kenya and allowing the ICC prosecution to proceed will add, not take away from national security as justice will be done for the victims of the violence.

Despite all these indications that his efforts will fail, Kibaki and his team seem undeterred and as recently yesterday (March 17, 2011) his so called Special Envoy for the deferral campaign, Kalonzo Musyoka, was in New York trying to convince the Security Council to take on the matter and even though some media outlets reported that a meeting to take up the matter had been scheduled, sources at the Council said there was no such a meeting agreed to. As a local daily reported regarding cancellation or non-happening of the meeting, a “clearly miffed Musyoka sarcastically told journalists to ‘Go and ask Tinga about it, when questioned about the meeting’s failure.” The Standard Online, Thursday, March 17, 2011.

(Part III will continue to examine Ruto’s ICC Case)

 
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Posted by on March 18, 2011 in Siasa

 

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