By The Citizen Correspondent
Nairobi. The International Criminal Court ruling on presidential contenders Uhuru Kenyatta, William Ruto and two others is likely to pose a major headache for Kenyan President Mwai Kibaki in the light of provisions in the country’s new constitution.While the ICC has said that the four accused can proceed with their lives as usual as they await the outcome of the impending trial, Kenyan new law demands that anyone facing criminal charges must step down until their matter is resolved.Yesterday’s ruling especially jeopardises the position of Mr Kenyatta, who is the country’s deputy prime minister and also minister for Finance.

The minister also aspires to contest the president in elections to be held later this year.Mr Kenyatta is one of four suspects who had their charges confirmed by the court, which is based in the Dutch city of the Hague. Others are civil service head Francis Muthaura and Kass FM radio presenter Joshua Sang.Yesterday, President Kibaki ordered Attorney General Githu Muigai to constitute a team of legal experts to advise the government on the way forward.

One of the thorny issues which will occupy the team will be whether Mr Kenyatta, the Deputy Prime Minister and Minister for Finance, and Mr Muthaura who is the civil service head can continue in their positions.

Already lobbyists and NGO represented have called for their suspension citing a clause in the coalition agreement signed by President Kibaki and Prime Minister Raila Odinga, committing themselves to sack any public officer charged with crimes arising from the post election violence.Mr Uhuru Kenyatta and William Ruto will stand trial before the International Criminal Court (ICC) over the post election violence.

Unless the ruling by the ICC pre-trial chamber two is overturned on appeal the four now face lengthy legal battles for their freedom.

But it was a good day for Postmaster General Hussein Ali and Tinderet MP Henry Kosgey who were declared free after the court declined tro confirm charges against them. The majority ruling was made by Judges Ekaterina Trendafilova and Cuno Tarfusser but judge Hans-Peter Kaul dissenting saying the crimes did not meet the threshold of international crimes. He was of the opinion that Kenya can handle the cases.

Mr Ruto, addressing a news conference after the ruling, maintained that he was innocent. The four suspects who watched the ruling at separate venues reacted immediately to the verdict, vowing to appeal against the ruling by the judges. Mr Ruto and Mr Kenyatta said they will go on with their presidential campaigns in spite of the ruling.

President Kibaki addressed the nation a few minutes after the ruling, directing Attorney General Githu Muigai to form a team to advise the government on the next step. He appealed for calm as in the country comes to terms with the consequences of the ruling.

Just like he stated during the decision to allow the ICC to investigate the crimes against humanity committed during the post-election violence, Justice Kaul dissented, arguing that the crimes should have been investigated and prosecuted by Kenya’s law courts.

The judges, only in the second open delivery of a ruling, walked into the ICC court room at 1.30 pm yesterday to deliver a verdict whose impacts will long be felt in the country’s political and legal history.

“As a result of the decisions issued today (yesterday), Mr Ruto, Mr Sang, Mr Muthaura and Mr Kenyatta are committed to trial. They will be tried before a different Chamber for the charges confirmed,” announced Justice Trendafilova as thousands of Kenyans glued to their TV screens watched.

The four, however, will not be carted away to the detention rooms at The Hague as they await their trials to begin. Justice Trendafilova was categorical that they remained free people with the liberty to engage in their daily routine in as long as they adhere to conditions of keeping away from incitement and committing crimes outlined in the charges.

“This, however, absolutely depends on the accused person’s adherence to the conditions contained in the summonses to appear, which continue to remain in full force. At this point, the Chamber recalls its previous warning to the Suspects that their continued liberty is subject to their non-engagement in incitement of violence or hate speech,” she stated.

The ICC clarified that even the though the charges against the four have been confirmed, their innocent or guilt individual will be decided in a face off with Mr Moreno-Ocampo—if the trials start before June— or his successor Fatou Bensouda if they come after June. Mr Moreno-Ocampo term ends in June.

“The Chamber wishes to be unequivocal and state that Mr Ruto, Mr Sang, Mr Muthaura and Mr Kenyatta are merely accused before this Court. The decisions issued today by this Chamber do not affect the liberty of the accused, which remains undisturbed,” she directed.

Justice Trendafilova said their verdict was independent, impartial and conscietuous. “The decisions are the result of intensive and committed judicial work of the Chamber, conducted impartially, independently and conscientiously in the interests and in the service of justice. It is our utmost desire that the decisions issued by this Chamber, bring peace to the people of the Republic of Kenya and prevent any sort of hostility,” she  said.

Justice Trendafilova said the Pre-Trial Chamber was seized of the delicate security situation in Kenya and gave the verdict which would assist to maintain stability as it protected the victims and witnesses.

The ruling means the judges agreed with Mr Moreno-Ocampo that Mr Ruto and Mr Sang should answer charges murder, forceful deportation, torture,  and persecution that were committed in Turbo town, Eldoret town and its suburbs, Kapsabet town and Nandi Hills during the post election violence.

In  his evidence, the ICC prosecutor alleged that the Eldoret MP headed a network, deputised by Mr Kosgey, which unleashed violence against the Kikuyu, Kamba and Kisii communities on grounds that they supported the Party of National Unity’s  torch bearer President Kibaki.

 The network, he argued, had an armed wing which was used to kill PNU supporters. Mr Moreno-Ocampo argued that Mr Ruto, Mr Kosgey and Mr Sang wanted  voters in the region to rally behind ODM candidate Raila Odinga as a bloc.
His lawyers, however, accused the ICC prosecutor of relying on coached witnesses, some who had past criminal records. “The confirmed the charges against Mr Ruto as an indirect co-perpetrator with others, while it found that Mr. Sang contributed to the commission of said crimes against humanity,” the judges ruled.

They exonerated Mr Kosgey from the charges, arguing that the prosecutor failed to present adequate evidence to show that the Tinderet MP involved in the violence. They accused Mr Moreno-Ocampo of relying only on one witness whose evidence failed to meet The Hague standards.

“In relation to Mr Kosgey, the Chamber found that the Prosecutor’s evidence failed to satisfy the evidentiary threshold required. The Chamber was not persuaded by the evidence presented by the Prosecutor of Mr Kosgey’s alleged role within the organization,” she ruled.

Yesterday, Mr Ruto claimed innocence, stating that he was a “stranger” to the accusations that have been brought against him by the prosecutor. He vowed to appeal against the ruling “no matter how long it takes.”

In the second case, the judges found that the prosecutor had presented adequate evidence to commit Mr Kenyatta and Mr Muthaura to trial at The Hague. They face charges of murder, eviction of people, rape and other sexual offences, persecution, and other inhuman acts which were committed in Nakuru and Naivasha as a retaliatory mission to the killings in Eldoret.

Mr Moreno-Ocampo evidence showed that Mr Kenyatta used raised funds and organised meetings with the outlawed Mungiki gang at State House to be ferried to Naivasha and Nakuru to attack ODM supporters. He is alleged to have organised meetings at the Yaya Centre, Nairobi Club and at State House.

Mr Muthaura was alleged to have used his influence in government to direct Maj General (Rtd) Ali, then the police commissioner, to pave way for Mungiki youths to carry out attacks in Naivasha and Nakuru. He was also accused of obtaining police uniforms and military trucks to ferry the youths to Naivasha and Nakuru.

“With respect to the criminal responsibility of Mr Muthaura and Mr Kenyatta, the Chamber was satisfied that the evidence also established substantial grounds to believe that they are criminally responsible for the alleged crimes, as indirect co perpetrators, having gained control over the Mungiki and directed them to commit the crimes,”  said the judge.
Maj Gen (Rtd) Ali was exonerated by the judges on grounds of lack of evidence linking him to the killings in Naivasha and Nakuru. They said that since the charges against the former police commissioner were hinged on crimes committed by the police, they could not confirm them.

“In relation to Mr Ali, the Chamber found that the evidence presented does not provide substantial grounds to believe that the Kenya Police participated in the attack in or around Nakuru and Naivasha,” she said.

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