The pre-trial judges at the I C C confirmed on Monday the charges against four of the six Kenyan suspects claimed to have played a major role in the 2007 2008 post-election violence that had taken the country to the precipice of civil war. After having thoroughly examined and analyzed all the evidence presented, the Chamber, by majority, decided to confirm the charges against four of the six suspects. The judges confirmed charges against, Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, Head of Civil Service Francis Muthaura and journalist Joshua arap Sang. Charges against, MP Henry Kosgey and former Police Commissioner Hussein Ali were not confirmed after the Judges found insufficient grounds for sustaining them.

In both cases one of the judges, Judge Kaul, disagreed, saying the ICC is not competent because the crimes committed on the territory of the Republic of Kenya during the post‐election violence of 2007‐2008 might have been serious common crimes under Kenyan criminal law, but not crimes against humanity as codified in Article 7 of the Rome Statute. For the criminal responsibility of Mr. Ruto and Mr. Sang, the Chamber found, on the basis of the evidence presented, that they are responsible for the charges brought against them. The pre‐trial Chamber II confirmed the charges against Mr. Ruto as an indirect co‐ perpetrator with others, while it found that Mr. Sang contributed to the crimes against humanity. The Chamber was satisfied that the evidence also established substantial grounds to believe that Mr Muthaura and Mr Kenyatta are criminally responsible for the alleged crimes having gained control over the Mungiki gangs and directed them to commit the crimes. Regarding 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. In relation to Mr. Ali, the Chamber declined to confirm the charges against him, because of lack of substantial grounds to believe that the Kenya Police participated in attacks in or around Nakuru and Naivasha. Mr. Ali was charged with contributing to the crimes through the Kenya Police. As a result of the decisions issued, 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.

Impact of ICC decision on the presidential candidates

A Cabinet team of seven members will determine wheather Deputy Prime Minister Uhuru Kenyatta and Eldoret MP William Ruto will be allowed to vie for the presidency if charged by the International Criminal Court. Justice Minister Mutula Kilonzo spoke of “impunity” as the two declared they would not drop their presidential bids regardless of the much-awaited ruling on their cases arising from the 2007/8 post-election violence. The Justice Minister argued that Chapter Six of the Constitution had clear provisions on the level of integrity expected of aspirants for political office. He argued further the National Accord said that “the parties shall ensure that any person holding public office or any public servant charged with a criminal offence related to 2008 post-election violence shall be suspended from duty until the matter is fully adjudicated upon”. The parties shall ensure that any person convicted of a post-election violence offence is barred from holding any public office or contesting any electoral position,” Mr Kenyatta’s spokesman, Munyori Buku, hit back immediately, accusing the Justice Minister of being driven by ulterior motives. Kenyan suspects to appeal against ICC ruling. William Ruto and Joshua Sang said that they disagreed with the ICC decision and expressed confidence the appeal court will vindicate them. The Head of Civil Service, Francis Muthaura said through his lawyer Karrim Khan he would seek to appeal against the decision of the pre-trial chamber. Also, Deputy Prime Minister Uhuru Kenyatta insisted on his innocence in the face of the charges. “I would like to reiterate before the people of Kenya and before the entire world, that my conscience is clear, has been clear and will always remain clear that I am innocent of all the accusations that have been levelled against me. I have cooperated with the ICC throughout the process and will continue to do so because I believe in the rule of law. Fellow Kenyans, as I have gone through this process, it has been abundantly clear to me that this trial has not been just about the individuals charged at the ICC. This trial has been about more. This trial has been about a country trying to come to terms with itself and its past - a country that is picking up the broken pieces from this dark period," Uhuru said in the statement.