Through the entire trial of Deputy President William Ruto & Journalist Arap Sang, one Judge has towered over the rest of his colleagues at the bench. Judge Chile Eboe Osuji, the Presiding Judge of Trial Chamber V has been a consistent feature of the trial appearing at once to be managing the proceedings quite effectively as he should in his role as president while still succeeding to engage the prosecution, defence and victims' counsel in serious conversation about the law, legal philosophy, factual disparities in the case before him and sometime in matters conjectural and speculative either in legal theory, history and contextual assessment. Coming straight out of a stint as Legal Advisor to Judge Pillay at the UN High Commission for Human Rights, a body mandated to investigate and respond to human rights violations globally including during Kenya's post electoral violence in 2008, the visibility of Judge Osuji in this trial is welcome in some instances but can also be quite disconcerting in others.
By what is emerging as his signature separate concurring or dissenting opinions, Judge Osuji's persuasive decisions provide insight into the mind of a judge who is out to bring his imprimatur to bear on any adjudication of the law at the ICC. The judicial time and investment required to draft coherent separate opinions clearly reveal a judge who is unsatisfied with doing the basic minimum as most judicial officials who are assured of 9 year tenure and a pension are wont to do. To what end is this quest for exceptionalism then? We suggest that perhaps, Judge Osuji is wedded to judicial activism in whose temple he worships and is thereby maximized. Alternatively, the judge's exceptionalism is a signaling effect to other state and non-state actors in the pursuit of judicial tenure in another global court. At least two illustrations in the just ended No Case to Answer (NCTA) submissions bear us out on this speculation.
At the very commencement of the NCTA submissions, Judge Osuji sought to persuade the defence to elect to forego its right to a defence case in exchange for the court's application of a higher standard of proof ("beyond reasonable doubt" rather than the lower threshold of "prima facie case") in the assessment of the prosecution's evidence at the NCTA. Arguing that a well-founded motion of no case to answer when made by experienced counsel in good faith for its own purposes may have even a stronger value as submissions for acquittal in any event, the learned judge sought to persuade the defence to drop its case without the need for calling any other witnesses. This proposition urged on the basis of an obscure practice in England and Australia where judges had the discretion to require the defence to elect to place reliance on its NCTA submission as a precondition to hearing a no-case submission is a stranger to the Rome Statute and defence counsel wisely declined to take the bait. That the bait was offered is perhaps one reason to worry regarding the Judge's intention. Why the apparent set up?
A more sinister proposition by Judge Osuji is the apparent difficulty he expressed on various occasions during the NCTA submissions regarding the relevance of "a network" or "organizational policy" as a critical element of crimes against humanity. What's confounding in the judge's attempt is that the Rome Statute itself is quite clear that crimes against humanity will only be found to have been committed when the attacks are conducted against a civilian population pursuant to a state or organizational policy (article 7(2)). Indeed, the RS is also patently clear in article 22(2) that "the definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted." In seeking this expanded and nebulous definition of crimes against humanity that eliminates the need to prove the existence of an organized network, the learned Judge appears to have analogized that if indeed the role of the RS is to be a check on atrocity crimes, then gravity alone should be sufficient to prove perpetration of crimes against humanity. This conclusion would be troubling because it not only departs from the unambiguous provision of the statute but also derogates from the theory of the prosecution case propounded since the pre-trial phase. Indeed, at confirmation, a central plank of the prosecution case was that Mr. Ruto was at the vortex of a Kalenjin network comprising of highly organized but complementary military, financial, media and political sub-units that pursued an explicit or implicit policy to expel the Kikuyu from the Rift Valley. That even the prosecutor, Mr. Steinberg held that such network was an essential element of the crime should disincline the judge from his suggested view.
While questioning an international Judge's independence based on posture and postulations from the bench may sound heretical, yet we are alive that international rule of law observers such as Eric Voeten, Mathew Gabel, Ruth Mackenzie and Phillipe Sands have found evidence that international judges can be influenced by political and strategic considerations. These scholars posit that it is difficult to rule out the possibility of occasional response to external pressure motivated by other goals that might correlate with state or personal interest. Only time will tell if ICC judges pander to particularistic interests or if their musings are merely heuristic.
*Duncan Ojwang (University of Nairobi Law Lecturer) & Korir Sing'Oei (Legal Advisor, Presidency)
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