ICC prosecutor moves to tighten Uhuru, Muthaura case


International Criminal Court Prosecutor Fatou Bensouda has moved to tighten her case against two Kenyans by asking that their charges be distributed in more than one category.
On Monday, the prosecutor asked the judges to re-characterise the form of individual criminal responsibility against Uhuru Kenyatta and Francis Muthaura.
Ms Bensouda argues that the specific facts of Mr Kenyatta's and Mr Muthaura's case reflect that indirect co-perpetration is not the sole manner in which the accused criminal responsibility can be characterised.
“The Prosecution acknowledges that the accused criminal responsibility could equally be characterised as ordering, soliciting or inducing; aiding, abetting or otherwise assisting; or contributing in any other way to a crime committed by a group of persons acting with a common purpose," Ms Bensouda argues.
The prosecutor says that Mr Muthaura and Mr Kenyatta “specifically directed the Mungiki to commit the crimes in Nakuru and Naivasha".
Ms Bensouda adds that Mr Muthaura instructed former Police Commissioner Hussein Ali to ensure that Kikuyu youth heading to the Rift Valley to carry out the attacks were not “to be disturbed” by the police.
She argues that Mr Kenyatta gave “direction[s]” and a “mandate” to an individual “to coordinate the Mungiki for the purposes of the attack in Nakuru".
"While the Pre-Trial Chamber held that these actions could be characterised as forms of indirect co-perpetration, it is clear that this is not the only manner in which they can be categorised. In the Prosecution’s view, they can equally be classified as “order[ing], solicit[ing] or induc[ing]”" the prosecutor argues.
Premature
Mr Muthaura has termed the application as premature, saying it “amounts to alternative charging by the back door”, but Ms Bensouda insists that the Prosecution is not suggesting any alteration on the Document Containing Charges.
“The Prosecution is simply taking the logical step of informing the Chamber, at the earliest available opportunity, that the accused criminal acts lend themselves to multiple legal characterisations,” he application states.
Ms Bensouda has requested that the Chamber give notice, before or on the first day of trial, that the Chamber may change the Accused form of individual responsibility.
“To be clear, the Prosecution is not requesting the Chamber to re-characterise the facts at this stage. Rather, the Prosecution is suggesting that the Chamber give notice to the participants that there is a possibility that may be employed at a later date to re-characterise certain facts,” the prosecutor said.
The prosecution must establish the existence of a common plan between two or more persons, including the accused. The Prosecution is not required to prove that the plan was specifically directed at committing a crime.


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