Justice-Kenya - ICC Chief Prosecutor Luis Moreno Ocampo yesterday sought authority to appeal the Pre-Trial judges' decision to exclude police killings in Kisumu and Kibera from the charge sheets against three of his suspects. Ocampo also seeks to appeal against the judges' reclassification of forced circumcision of Luo men in Naivasha from the original "other forms of sexual violence" category to "other inhumane acts". In his application to the ICC Trial Chamber, Ocampo claims the finding by the Pre-Trial judges that Civil Service boss Francis Muthaura and former police boss Hussein Ali cannot be held to account over police role in Kibera, Kisumu, Naivasha and Nakuru killings was very dangerous to his case."The consequences of the decision reach far beyond this case alone, because it threatens to protect an entire category of persons from criminal charges - state officers who contribute state machinery to an attack against the civilian population in furtherance of a nonâ-state organisational policy," he says.

Dismissing those charges last week, the Pre-Trial judges said Muthaura and Ali cannot be indicted for participating in Mungiki organisational policy because they were at the time State agents.

They could also not be properly charged with participating in State policy because the attacks which Ocampo accuses them of were in furtherance of the policy of an organisation - Mungiki.

But now Ocampo is saying that if the standard implied by the judges' decision is allowed, it will in effect be sanctioning "impunity for all criminal activity directly perpetrated by the Police or encouraged by its deliberate failure to act."

The crux of Ocampo's application is that Mungiki was used by the state to attack civilians in Naivasha and Nakuru at the instigation of Muthaura using Uhuru Kenyatta, who then was not a state officer, as a linkman.

The role of the police was to keep off the operation which Ocampo claims they did. And since the attack was not done by the state, the judges want a proof of the state's policy to support an organisational attack in order to charge Muthaura and Ali over the matter."The Prosecution will not be able to present its case if the Chamber adheres to an incorrect legal analysis that forecloses the possibility of holding State actors accountable for these crimes," Ocampo says in his plea opposing the charging of only Mungiki over the Naivasha and Nakuru violence.

Further, Ocampo claims the judges usurped his prerogative to "proffer charges against suspects". He claims he will be demonstrating to the Appeals Chamber that Article 54 of the Rome statute grants him powers to define the organisation aspect of crimes based on his investigation "so long as its definition is legally permissible."

He claims that the Pre-Trial Chamber's powers under Article 74(2) and Regulation 55 to amend the legal characterisation of the charges do not permit it to put words in his mouth by introducing "facts and circumstances" he had not alleged in the first place."A decision that may wrongfully force the Prosecution to forego a significant component of its case (the participation of State actors in their network's organisational plan to commit crimes) affects the fairness of the proceedings vis-à-vis the Prosecution," he says.

The prosecutor is unhappy with the change of sexual charge saying the judges "summarily discounted the sexual component of the crime without explanation."

The implication of this, avers Ocampo, is that he now has to prove different elements of the crimes further intruding on the prerogative of his prosecutorial powers.

He says the decision prevents him from discharging this duty and further adopts a legal characterisation that does not accurately reflect the nature of the acts of forcible circumcision."In this sense, the decision does not respect the procedural and substantive rights and obligations of the Prosecution. As the prosecution will argue before the Appeals Chamber if leave to appeal is granted, It is the prosecution who has the prerogative to select and to present the charges. "The Pre-Trial Chamber is not entitled to choose the counts that it believes best reflect the harm suffered by victims and the criminality engaged in by the persons," he says.

If the Trial Chamber allows him, Ocampo will then lodge his formal appeal with the Appeals Chamber.

Nzau Musau

Nairobi Star/18/03/2011