Henry Kosgey - ICC 2007 Election Allegations

ICC 2007 Election Allegations

Further information: International Criminal Court investigation in Kenya See also: List of people indicted in the International Criminal Court#Henry Kosgey

Following the Kenyan presidential election, 2007, the incumbent, President Mwai Kibaki was declared the winner but this was disputed by the opposition who alleged fraud. The following 2007–2008 Kenyan crisis resulted in around 1,000 deaths on both sides and 200,000 people displaced. Human Rights Watch said that on the opposition side, politicians had met with Kalenjin leaders to "organise, direct and facilitate" violent attacks against Kikuyus. Following mediation, the parties agreed to establish the Waki Commission to investigate the violence. The Waki Commission recommended the establishment of a local Tribunal and, failing that, referral to the International Criminal Court.

In March 2010 the Prosecutor of the International Criminal Court (ICC) requested the Court to open an investigation into the Kenyan situation. On 15 December 2010, the Prosecutor announced that Kosgey was one of six Kenyans he had applied to the court for summons to be issued alleging crimes against humanity. The Prosecutor alleged that Kosgey was a “principal planner and organiser of crimes against PNU supporters.”

On 8 March 2011 the Court issued summons for Kosgey together with the other 5 Kenyans to appear before the Court. Kosgey appeared voluntarily before the court on 7 April 2011. A date for confirmation of charges hearings was fixed for 1 September 2011.

The hearing to decide whether or not to confirm the charges against Kosgey took place before the ICC Pre-Trial Chamber II from Thursday 1 September 2011 to Thursday 8 September 2011. The Prosecution put forward a case alleging that Kosgey together with William Ruto and Joshua Sang were members of a network that organised violence in Kenya. Kosgey's lawyers presented his defence during the hearings and denied that Kosgey was a member of any illicit network, if indeed such a network existed. They argued that the Prosecution's case against Kosgey rests entirely on a single, anonymous witness, known only as witness 6. This witness claims that Kosgey attended planning meetings of the alleged network. Witness 6 is the only Prosecution witness to implicate Kosgey in this manner. Aside from the statement of witness 6, the Prosecution had no other evidence or proof of Kosgey's involvement in the planning of any violence. Kosgey's defence argued that the fact that the statement of witness 6 was not corroborated by any other source or any real material evidence means that it is unreliable. This view, they claim, is backed up by the ICC's own previous rulings and jurisprudence. According to Kosgey's defence, witness 6's statement amounts to hearsay and should therefore be dismissed. Kosgey's defence also complained that the Prosecution failed to carry out proper investigations in Kenya, noting that at no point did they interview or request to meet with Kosgey himself or even inform him that he was a suspect. They state that had this been done, Kosgey would have at least had an opportunity to understand the charges and offer exonerating and exculpatory evidence.

On January 23, 2012 the International Criminal Court pre-trial chamber II declined to confirm all of the charges leveled against Kosgey, citing insufficient prosecution evidence to sustain a full trial. Charges against his two co-accused were confirmed.