Lawyers and law students I bet are following the ICC trials very closely. Through the genius of Tanya Kasichana, my office is streaming the proceedings live and as much as I may want to steer away from the proceedings I am inclined to opine on the same.

I am alive to the standard of proof set out by the Rome statute and Rome Regulations in proving criminal liability in crimes against humanity. There are basically three elements to a criminal trial

1. Actus Reus– Which means the criminal Act

2. Mens Rea– which means the criminal intent

3. Proof beyond reasonable doubt.

Now in classical interpretation of the law all the three elements must be conclusively ascertained for an accused person to be found guilty. The facets of Mens- Rea which include; knowledge, preparation and opportunity must be met while the prosecution must prove that the aforementioned existed beyond any reasonable doubt.

Both the prosecution and the defense teams adduce evidence that either corroborate the claims averred or that rebut such claims as traversed as either case may be.

Apart from the adducing evidence that support their case, the prosecution also has an onus to furnish to the defense any information that would otherwise absolve the defendant off the claims against him or that would otherwise enable them to front a defense.

Above all these, there are rules of natural justice that must always be adhered to. One of the seminal principles of NATURAL JUSTICE is that Justice must not just be done but must seem to be done. In R vs. Sussex Justices Ex Parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) Justice Hewart orbitered that. “Not only must Justice be done; it must also be seen to be done.”

Another cardinal Natural Justice rule is that of Audi Alteram Partem (A person should not be condemned Unheard) this principle does not only envisage the hearing of an accused but also taking into consideration the averments there from. This was held in The King vs. Chancellor of Cambridge University 1 STR 557.

Now, in applying the law all courts including ICC must adhere to these basic legal principles albeit with modifications in accordance with the court’s rules of procedure and statutory provisions.

My apathy towards the ICC begins with the blatant disregard of the principles of natural justice that demands that justice is done and seems to be done as held by Justice Hewart and that the accused must be heard and their claims also taken into consideration in deciding the case as held in The King case.

The prosecution in the ICC proceedings against the Kenyans has politicized the whole trial. They investigations and the trial conduct of the prosecution has been so convoluted that differentiating truth and Facts from Hearsay and fabrications is almost impossible.

We must all remember that the justice being sought in this case is not only justice for the victims but also justice for the accused persons. Since it is already apparent that the accused persons are being used as guinea pigs by the court and the prosecution it is unfathomable to anticipate justice.

What good is jurisprudence created out of breaking of the fabric of the law?

The prosecution’s conduct in the cases against the Kenyans has been anything but transparent, objective and in good will. They have denied the defense team evidence in good time and have resorted to ambush tactics against the accused persons. In legal systems, the prosecution’s conduct alone is enough to throw out a case. Interestingly in their rulings the judges have agreed with the prosecution entirely in other some circumstances ipso prius (without relying on any authority). Passionate submissions by the accused persons and their attorney have been blatantly disregarded.

I further join issues, with the court’s lack of clarity on the substratum of the claims made against the accused persons, and there from to ascertain the system of law to be applied against the accused. It is not just enough to look at Articles 5, 7 and 9 of the Rome statute which basically give the court the jurisdiction over such crimes as preferred against the Kenyans but the court must go further to be convinced on the circumstances under which the crimes were committed.

As things stand it is difficult to ascertain whether the accused are being tried hinged on Human Rights Law or Humanitarian Law. Prosecution has averred on numerous occasions that the crimes committed were not spontaneous, that they were pre planned and executed by well structured groups with elaborate commands and supply of weapons. Such definitions attract attention to the definition of Combatants under Humanitarian Law. It would have been prudent if the court clearly enunciated the legal regime setting out the Ratione Decidendi (reasoning behind) such decision clearly.

Finally the court must not just address itself to the 3 accused persons in conducting the trials. It has a broad mandate of ensuring that the outcome of the judgment will foster peace. ICC is a creature of the United Nations. The core objective of the United Nations as contained in the preamble of the UN Charter and the subsequent Articles is to maintain world peace; as such if the decision of the court would be to distort the aforementioned objective then it is my opinion that the cause should be abandoned.

In conclusion, I am not disputing that in 2007-2008 the post elections violence caused many Kenyans intolerable pain and suffering. The events were deeply regrettable and to fathom that the perpetrators may not ever meet justice leaves bile in the throat. The ICC process was seen as a means to bring perpetrators to Justice and to end the PEV cycle once and for all. However the process as it is now has failed to meet the expectations put on it. The haphazard handling of the cases by the prosecution and curious judgments by the bench has made the whole trial more of a check on ICC than it is a quest for justice for the Kenyans involved in the case.

Justice must not just be done but must seem to be done.

Where we are now, it is my opinion that truth and reconciliation mechanisms best fits the Kenyan situation. The ICC has polarized the nation more than anything else and truth be told Kenya is now more susceptible to ethnic violence than any other time.

Charles Madowo

Charles Madowo is an apprentice at Wambui Kyama & Company Advocates

madowo@wkadvocates.co.ke