In the Kenyan Courts, the charges against Uhuru Kenyatta may have been dropped the moment the prosecutor mentioned that she lacks evidence. This is the common law legal system which is adversarial in nature - each side make their case in a public court through oral argumentation, each side brings their witnesses. The judge is simply a referee and ensures that that questions are relevant and method of cross examination is fair. The judge does not assist in the inquiry. He deals with evidence placed before him. The common law legal system adopts deductive argument to arrive at conclusions. The Court room procedures are rigid and use technical rules. Parties to the dispute control proceedings and there is an emphasis on oral argument. This system has its origin in the United Kingdom’s common law courts and us significantly used across the Commonwealth. The civil law system used in the ICC at The Hague however has historical roots in the ancient Roman law codified in Corpus Juris under the rule of Emperor Justin (528-534 AD), and afterwords applied in the Continental Europe, including countries like France, Germany, Italy and Switzerland via the influence of Napoleon. In civil law legal system, the reasoning is inductive. Broad principles are outlined by the judges who then consider the facts of the law and apply the principle to the facts. In this regard, in civil law legal system there is only one right answer to the application of principles on facts- there is no dissenting view. The civil law legal system adopts an inquisitorial procedure rather than an adversarial procedure. Parties could informally suggest the question which the opponent should respond to but it is the judge to determine the answer. The role of the judge is to discover true basis of the dispute, bring to light all aspects of the case, rather than simply depending on the arguments of the parties. It must thus be understood that unlike the common law’s adversarial system where a lawyer can conceal evidence which is injurious to his client; in inquisitorial a lawyer is an officer of the court and should assist the court in arriving at the truth and the advocates cannot therefore hide under client/ advocate confidentiality. This is where the catch is. Uhuru’s lawyers and the Kenyan AG are expected under the civil law legal system to assist the Court access any evidence under their control. It is therefore not going to be easy that since the Kenyan Government, headed by the accused, has declined to cooperate and give evidence required by the prosecutor and Court, the judges should simply accept the arguments and drop the case. This is the basis of the prosecutor’s argument that until the required evidence is provided by GoK, the case should be adjourned “sine die” rather than be dismissed. The prosecutor’s argument is that, pursuant to orders for cooperation issued to the GoK earlier, the GoK should be found to be uncooperative by refusing to give some evidence. And, according to the prosecutor, the head of this Government is Uhuru Kenyatta – the accused. This, to me, is also the reason why Uhuru Kenyatta was advised to technically relinquish his title of President during his appearance in The Hague. It was less in the national interest as he declared in Parliament, but rather more a tactic in self preservation. Uhuru Kenyatta is still not out of the woods, at least not yet; and therefore William Ruto, subject to his bond at The Hague, may have few more chances to be an Acting President.
Posted on: Thu, 09 Oct 2014 05:20:48 +0000
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