The International Criminal Court has issued summons for 6 Kenyans to appear before The Pre – Trial Chamber of International Criminal Court on 7th April 2011 to answer to charges under the Rome Statute.
The Pre – Trial Chamber will hold a hearing to confirm the charges on which the prosecutor intends to seek trial. The Rome Statute gives the person for whom the summons have been issued and the state which has jurisdiction over such persons to challenge admissibility of the case or the jurisdiction of the Court. We would like to state as follows:
1. The Government will challenge the admissibility of the cases as well the jurisdiction of the court.
2. It should be noted that according to the Rome Statute indictmentwill only be issued after the charges have been confirmed by the Pre –Trial Chamber after the said hearing.
DATE at Nairobi this 9th day of March 2011
Hon. S. Amos Wako, EGH, E.B.S. FCIArb, S.C.M.P
ATTORNEY GENERAL
Hon. Prof. George Saitoti, EGH, M.P.,
MINISTER OF STATE FOR PROVINCIAL
ADMINISTRATION & INTERNAL SECURITY
Hon. Mutula Kilonzo, EGH, E.B.S, S.C
MINISTER FOR JUSTICE, NATIONAL COHESION
AND CONSTITUTIONAL AFFAIRS
About the Author
Whichever way the Government may challenge admissibility of the cases as well the jurisdiction of the court does not matter but it knows that Kenya had humanrights violation in 2007/08 Presidential election dispute of which left 1,500 or more dead and 350,000 or more displaced up to date.Was that the right thing to happen?
The Government knows who did it and who was in control to stop it.Why can’t the Government fire those mentioned untill the Court proves them innocence and then come back to their heavenly work as usual?
Let us watch Natives living in darkest in Africa South of Sahara displaying their Primitive Impunity of the highest order.Doest it mean killings of over a 1000 innocent Kenyans would be likened to killing rats ?
According to opinion pools done in Kenya 85% of kenyans want to see the six Pev masterminds taken to Hague where they cannot buy Justice!
Slobodan Mirocevic the late former President of Yugoslavia was locked in Hague cells .The former Liberian strongman Charles Talor is locked in the same cells Karansic Radovan is also locked there. What is the big deal in Locking the Six who have committed crimes against humanity.Impunity must end in Kenya and the Li ves of Kenyan people is Precious .There has been Killings & eviction of None Kalenjins from the Rift Valley in every election year when will this stop?
Let nobody shed crocdile tears when the Six Pev are taken to Hague to face charges!Let each and every one carry his cross!
Kenyans demonstrating against Kalonzo hypocratic &conspiracy diplomacy>http://www.nation.co.ke/News/Kenyans+in+US+protest+over+Kalonzo+shuttle++/-/1056/1121636/-/12pp5f/-/index.html
http://ajabuspeaks.squarespace.com/ajabu-speaks/2011/3/7/insurrection-and-military-intervention-the-us-nato-attempted.html
Majority of right thinking Kenyans fully support the ICC process and the government must stop playing games with us. If the government is prepared to protect the Ocampo 6 at all costs,I can bet a local tribunal will never try any of them. They MUST therefore be tried at the Hague.
“The ICC took the Kenya case after parliament rejected moves to set up a local tribunal and asked that the cases be referred to The Hague” Now they are wasting public money going around the World saying we dont want ICC, while 2.4 million Kenyans face starvation. This is outrageous. What is worse is that you dont see Kenyans on the street calling for this suspects to resign. I guess you get the leadership you deserve.
This is a bandit government led by people living the Big Man Syndrome, which has dominated post-colonial Africa for many years and will not end until this group dies or gets kicked out of power à la the north Africa revolution.
Why are these fools talking on behalf of Kenya? Six criminals who used their authority to commit atrocities have nothing to do with the country as a whole. We are being deceived by Kibaki and his ilk that the ICC is against Kenya. This is not so because his government was given enough time to form a local tribunal but because of the PNU opposition for anything supported by Raila Odinga (who was for a local tribunal), they changed and voted for The Hague. This is the same tactic Ruto used to oppose Raila when he supported the presidential system type of Constitution. If only they had set aside petty rivalry and accepted to form a local tribunal, the current situation would not have occurred.
Let’s be candid here. Kibaki nominated Professor Muigai to be the next Attorney General yet despite his impeccable qualifications, he is Uhuru Kenyatta’s cousin: Conflict of interest? Yes! Imagine Uhuru’s cousin being the A-G, presiding over a local tribunal? He would defend him to the bitter end. Look at the level of damage the ever-smiling Wako has caused in Kenya’s judicial system.
Kibaki then proposed Lawyer Kioko Kilukumi as Director of Public Prosecutions. Surprised? The guy was Ruto’s criminal lawyer who presided over his land theft case up to the time he resigned citing conflict of interest. Now, with people directly connected to Kibaki’s two “heirs apparent” – Uhuru and Ruto, just see how much of a ride Kenyans were going to be taken with a local tribunal.
Raila Odinga opposed the nominations bitterly and was hammered hard by PNU MPs in Parliament and at public meetings. He was called all manner of names and this also made Uhuru Kenyatta show his true colors by banging a table angrily and even asked whether “they” (Odinga and his supporters), thought The Hague belonged to their mothers. This was the lowest he had gotten publicly because PNU had lost control over the local judicial mechanism.
Ruto said Kibaki’s withdrawal of the nominations was a tactical retreat and that people should await a real political bomb targeting Raila. But before more weekend political drama, Ocampo has asked for their asses at The Hague. Ouch, more confusion in Kibaki’s camp. Ruto and Henry Kosgey had long left Raila’s camp, so they are not a concern for the right-minded ODM sympathizers. I mean Sally Kosgei, now infamous for insulting the Kenyan flag, still flies it and has not left her ministerial post, despite ditching Raila, her party leader. She is also part of the silly shuttle diplomacy. These Kalenjin politicians are always with members of their community or with PNU members at public meetings, so why don’t they quit ODM?
We wait to see how PNU will deal with the inadmissibility issue. Meanwhile, Kibaki continues running loose shit in his diapers.
To conqur with tha swahili saying ‘usipoziba ufa utajenga ukuta’ the crack started showing in 1992 no action was taken in 97 it it grew bigger n wider in 07 it reached tha foundation threatening the entire building. Kenya can not go the somali, rwanda way courtery of a few people who thrive through impunity. The perpetrators of pev must be put to account for their actions
Vice President Kalonzo Musyoka has apparently failed in his mission to the United States.
Soon after Mr Musyoka met in Washington on Wednesday with Deputy Secretary of State James Steinberg, a State Department official told the Nation.co.ke that “we do not support a UN Security Council resolution to defer the ICC Kenya investigation.”
The VP had held talks with representatives of other Security Council member-states in New York on Monday. He sought their support for a one-year suspension of the International Criminal Court’s cases against six Kenyans accused of orchestrating the violence following the 2007 elections.
“We do not believe that an Article 16 deferral of the Kenya proceedings would help maintain or restore international peace and security so as to warrant action by the Security Council,” the State Department official wrote on Wednesday.
“To the contrary, further delay in the process of holding accountable those responsible for Kenya’s post-election violence would undermine prospects for Kenya’s long-term stability, which could adversely affect international peace and security.”
“As we have consistently stated,” the official added, “it is critical that perpetrators of Kenya’s post-election violence be held accountable to end the country’s culture of impunity and help ensure Kenya’s future peace and stability.”
The State Department official did point to a different section of the ICC’s founding treaty that might be pertinent to Kenya’s situation.
Article 19 of the Rome Statute would enable Kenya to ask the court to halt the cases against the six if Kenya itself moves to prosecute those named in the ICC summonses issued this week.
“Should Kenya establish a credible domestic mechanism, and begin proceedings against the individuals who are the subject of the ICC prosecutor’s application to the court, the Rome Statute has specific procedures to address such matters,” the US official noted.
http://www.nation.co.ke/News/-/1056/1122366/-/110nwjxz/-/index.html
At least the USA pippo are smart enough not to allow this intellectual lightweight Kalonzo, to pass in the middle of the State Department to reach the UNSC.
After Ranneberger’s WikiLeaks report, Kalonzo is the last Kenyan USA is gonna respect.
Please, why run around like a headless chicken in a panic! Deferrals, inadmissibility, foot-dragging in providing evidence etc. when the solution is simply a credible judicial process at home! All these PNU and ODM rebels can they not push through parliament a local tribunal to be established? Get it right, first time, all the time!!
Here is how unreasonable Kalonzo is; even if the six escape Hague and land home in a credible tribunal their cases will still be bending in courts come 2012, meaning that they will not be eligible to run for elective offices. A credible tribunal equivalent to The Hague will find the six guilty if indeed they were involved anyways. So does it real matter where and by whom they are aligned? You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time.
Hon. Watermelon, rudi nyumbani to strategize how you can “pita katikati yao” when they head to the Hague. Stop wasting taxpayers’ money.
Did Kalonzo and his hangers-on have to travel to USA wasting public funds and time? Why didnt he just phone/email the US State Department to get US position on deferral instead of traveling uninvited before phoning/consulting wasting public funds/time in the process. Do we have to let him get away with wasting public funds just because he is an ‘intellectual lightweight’, hence can be allowed to make one or two mistakes
ICC says stopping case unfeasible
BY BERNARD MOMANYI
Updated : 1 hours and 6 minutes ago
NAIROBI, Kenya, Mar 10 – The International Criminal Court has warned that the government’s plans to challenge the admissibility of cases filed against six Kenyans at The Hague will be unsuccessful because no local judicial mechanism is in place.
The Outreach Unit of the International Criminal Court (ICC) has advised that such plans can only succeed if persons accused are facing similar charges at the local courts.
“You have to challenge the admissibility based on actual national proceedings, otherwise the challenge may simply not be successful because that is the logic of article of Article 19 of the Rome Statute,” Gilbert Bitti senior legal advisor, of the pre-trial division of ICC said in a TV series focussing on the Kenya situation.
He added: “The challenge has to be based on actual national proceedings, actual national prosecutions against those persons for those crimes.”
“You cannot challenge admissibility [of the cases of the court] based on future proceedings or a future court to be established.”
The government announced on Wednesday that it planned to challenge the admissibility of the cases facing six Kenyans at The Hague and the jurisdiction of the court after the pre-trial chamber judges issued summons against the suspects accused of planning or financing the post-election violence.
The Outreach Unit of the ICC has launched the Kenyan TV series ‘Ask the Court’ where it seeks to explain the frequently asked questions about The Hague process now that suspects have been summoned to appear on April 7.
Those required to appear at The Hague include Deputy Prime Minister Uhuru Kenyatta, Head of the Civil Service Ambassador Francis Muthaura, suspended Higher Education Minister William Ruto and Tinderet Member of Parliament Henry Kosgey who stepped aside to face charges of abuse of office.
Others are former Police Commissioner Mohammed Hussein Ali and Radio presenter Joshua arap Sang of Kass FM.
Mr Ruto, Mr Kosgey and Mr arap Sang have been ordered to appear at 0930GMT for the purposes of the hearing to be held pursuant to article 60 of the Statute while Mr Kenyatta, ambassador Muthaura and Hussein Ali will be required to appear at 1430GMT on the same day.
Soon after all the suspects confirmed they will honour the summons, the government sent a statement to newsrooms saying Kenya will challenge the admissibility of the cases and the court.
“The government will challenge the admissibility of the cases as well as the jurisdiction of the court,” the statement signed by Attorney General Amos Wako, Internal Security Minister Professor George Saitoti and Justice Minister Mutula Kilonzo said.
The three said the government had an obligation under the Rome Statute to challenge the admissibility of the cases or the court itself.
“The Rome Statute gives the person for whom the summons have been issued and the State which has jurisdiction over such persons to challenge admissibility of the case or the jurisdiction of the Court,” their brief statement stated.
Curiously, the statement was not signed by other members of the Cabinet committee on ICC matters from the ODM wing of the coalition government. No explanation was given in the statement released from the Office of the President.
Lands Minister James Orengo who is among three of the ICC Cabinet committee members did not endorse the statement and publicly opposed the move to challenge the Hague cases, saying they were not consulted.
A statement posted on the ICC website on Tuesday night said the six suspects had been summoned to appear at The Hague court to show cause why they should not stand trial for their alleged roles in planning the 2008 post election violence which claimed the lives of more than 1,500 people.
The pre-trial chamber judges said in their ruling that there were reasonable grounds to believe that the suspects have a case to answer at The Hague hence should appear before the Court.
The ruling was endorsed by Judges Cuno Tarfusser and Judge Ekaterina Trendafilova but was opposed by Judge Hans-Peter Kaul who said that he will be issuing his dissenting decision in due course.
A Universal Court with Global Support Ratification and Implementation Universal Ratification Campaign; January 2005 – Kenya
Kenya:
Urge the government to ratify the Rome Statute of the International Criminal Court
Kenya signed the Rome Statute on 11 August 1999. Government officials are reportedly in the advanced stages of drafting the necessary implementing legislation, and have indicated that Kenya is actively considering ratification.
Recently, the Minister of Justice and many other officials have stated that Kenya was close to the ratification. Even though some constitutional problems have been raised; the Attorney-General said Kenya was considering both ratification and implementing legislation.
The Coalition for the International Criminal Court (CICC) and its members are calling on Kenya to complete its ratification process as soon as possible. By doing so, Kenya would accept the jurisdiction of the ICC over genocide, war crimes and crimes against humanity, if its national courts were unwilling or unable to investigate and prosecute such crimes.
So far, 97 states worldwide including 26 African countries have ratified the Rome Statute. By ratifying the Rome Statute, Kenya will encourage other African countries to join the ICC.
Take action now!
Support CICC’s appeal by sending letters by mail or fax urging the government of Kenya to ratify the Rome Statute and implement it into national law.
You might like to use the following letter as a guide.
Send your letter to:
H.E. Mwai KIBAKI
President of Kenya
Nairobi, Kenya
Fax: (254) 20 21 47 91
president@statehousekenya.go.ke
(If you receive an email failure, the email box is full. Please try the email again in a few days)
CC:
H.E. Chirau Ali Mwakwere,
Ministry of Foreign Affairs
Fax: (254) 20 34 19 35
Your Excellency:
At a time when the International Criminal Court (ICC) is beginning its important work to end impunity for genocide, crimes against humanity and war crimes with its first two cases in Uganda and the Democratic Republic of Congo, we are writing to urge you to ensure that the Republic of Kenya supports this new and vital system of international justice by ratifying the Rome Statute of the International Criminal Court (The Rome Statute) as soon as possible.
The Rome Statute, which entered into force on July 1, 2002, provides for the establishment of a permanent International Criminal Court which will only act when national courts are unable or unwilling to do so. As of December 31, 2004, a total of 97 states have ratified or acceded to the Rome Statute, including 26 African countries (Benin, Botswana, Burkina Faso, Burundi, Central African Republic, Congo Brazzaville, Democratic Republic of Congo, Djibouti, Gabon, Gambia, Ghana, Guinea, Lesotho, Liberia, Mali, Malawi, Mauritius, Namibia, Niger, Nigeria, Senegal, Sierra Leone, South Africa, Tanzania, Uganda and Zambia). A further 43 states, including the Republic of Kenya, have signed the Rome Statute.
We welcome reports that ratification of the Rome Statute is currently before your Cabinet and that your government has been examining the treaty in detail. We now urge you to move forward with prompt ratification and domestic implementation of the Statute. Genocide, crimes against humanity and war crimes should be included in your domestic law and defined in a way that is consistent with the Rome Statute and other international law in order to ensure that the Republic of Kenya can perform its primary role of investigating and prosecuting these crimes. It is also important to draft legislation to provide a legal basis for Kenya’s cooperation with the Court.
We also hope the ratification and implementation of the ICC treaty will be transparent processes that encourage the involvement of members of the general public, civil society organizations and human rights groups in Kenya.
The Coalition for the International Criminal Court (CICC) is pleased to note that the Republic of Kenya has not signed a Bilateral Immunity Agreement (BIA) with the United States. This courageous stance will have significant effects in East Africa and other African regions in light of Kenya’s leading role in human rights and peace-building efforts on the continent. We therefore urge the Republic of Kenya to continue resisting U.S. demands for blanket immunity from the Court.
We hope that the Republic of Kenya will take steps towards ratification and implementation of the Rome Statute as soon as possible so that it can act together with the international community in building an effective system of international justice to end impunity for the worst crimes known to humanity.
Yours sincerely,
http://www.iccnow.org/?mod=urc0105&idudctp=20&order=authorasc#20
Kenya brings ICC States close to 100 mark:
http://www.iccnow.org/documents/KenyaRatRS_15Mar05.pdf
Kenya asked to ratify the ICC treaty: http://www.iccnow.org/documents/KenyaRat_11Jan05.pdf
This is how Kalonzo and team were treated in the US yesterday: no media coverage, no President Obama or Foreign Secretary Clinton. Useless lame trip to waste taxpayers money. Kibaki and Co. got warned not to expect US support, but as usual they are stupid. So embarrassing
DEPUTY SECRETARY JIM STEINBERG
10:15 a.m. Deputy Secretary Steinberg meets with Kenyan Vice President Kalonzo Musyoka, at the Department of State.
(CLOSED PRESS COVERAGE)
11:45 a.m. Deputy Secretary Steinberg attends a meeting at the White House.
(MEDIA DETERMINED BY WHITE HOUSE)
4:30 a.m. Deputy Secretary Steinberg attends a meeting at the White House.
(MEDIA DETERMINED BY WHITE HOUSE)
http://www.state.gov/r/pa/prs/appt/2011/03/157926.htm
I wanted to laugh but then remembered all the money wasted on this mission to cover up crimes against humanity. I also feel for those Musyoka represents in the house. Sad how power alliances can sideline the common goal of a better Kenya. Take a break now Musyoka. We all expected this and sad you could not see it coming.
The problem is that politicians want to prove to others that they are in a better position to solve issues without involving their opponents. The opponents want to prove that whatever they say would carry the day. The matter would be resolved if both sat together and talk one language. I wish our politicians would sit down, put aside their pride and come up with a credible and agreeable judicial system. It is only then that the UN would give a consent for deferral. We should forget about deferral as long as RAO and President continue reading from different script.
Intellectual featherweight or common sense would still be compliments by all standards…It’s disgusting to have such a spineless sycophant as VP! Before Kalonzo left for the US, he new that the US had already indicated that his mission was and is an exercise in futility. Therefore why waste public funds on the same??
The problem with the government is that theyve chosen to ignore the law and engage the ICC in a political manner. They are guaranteed to fail. See my blog http://canecool-soapbox.blogspot.com
And they hired two QCs for this????
I am surprised at the arrogance and confidence exhibited by uhuru Kenyatta ,William ruto and arap sang after appearing before ICC pre trial chambers recently.these people imply that ICC is nothing to them and they will on one hand not break conditions on summons to appear but on the other continue to hold public offices and organize political meetings ostensibly to preach peace but in reality seek to abuse opponents,spew hate,venom and create conditions that may exclude rivals like odinga,koigi,etc from seeking presidency in 2012 courtecy of kanu style politics in 1960,70.80.which saw scores of enemies of party denied clearance and party ticket to contest,detentions,concocted charges to remove one from serving in parliament.this is what uhuru and co are advocating.hatred against certain regions and groups of people in the name of unity,prayers and so called ocampo six.
uhuru and co are perfectly in order to form party of their choice but they should cease dirty politics against certain regions and their people using mother tongue and coded language.uhuru should open his eyes and see what has happened to dynasty’s that refuse to change course,look things through different windows.ultimately see what what become of power of Saddam and family,Mubarak and co,gadhafi,Mobutu.were this people not more powerful than uhuru and ruto even now at the height of their new power thanks to kibaki and finance ministry legacy.
if uhuru and ruto want kenya to back and recreate 2002 election scenario when they stood against kenyans yearning for chang.
we know uhuru and ruto only stand out only for their businesses and looting of government coffers to keep coterie of hang er on and sycophants in the name of supporters.they have never initiated any idea good for Kenya they only copy and imitate other peoples ideas and causes,so be and our country is damned and the huge changes made by kibaki to transform Kenya are going to be lost thanks to kibaki anointing uhuru and ruto for presidency to atone uhuru for having masterminded theft of elections for him in 2007.it is up-to Kenyans to see the grouping of uhuru and ruto for who they were in the past,now and in future.
April 6 2011 at 15:17
President Obama’s nominee for the US ambassador post in Nairobi said that the United States will oppose Kenya’s request to the United Nations for a deferral of the cases against the suspected post-election violence sponsors.
Retired US Air Force Major General Scott Gration, President Obama’s pick to succeed Mr Michael Ranneberger, told a US Senate panel Tuesday that Kenya’s bid did not meet the conditions for a UN-sanctioned reprieve.
Because the US holds veto power on the Security Council, Gen Gration’s statement appears to signal doom for Kenya’s scheduled appeal to the council on Friday.
The country must persuade the 15-nation UN body that trials in the Hague would jeopardise international peace and security. But Gen Gration suggested on Tuesday that the opposite may be true. A UN deferral of the cases “may in some ways exacerbate the situation,” he said.
He did note that “other avenues” were open to Kenya in its quest for a deferral. Kenya can appeal directly to the International Criminal Court to allow the cases to be tried at home rather than in the Hague, he said.
Promote activism
Gen Gration’s comments reaffirmed the US position articulated earlier by Mr Ranneberger and senior State Department officials.
The nominee’s remarks on Tuesday on other Kenya-related topics also suggested he will carry on with the approach taken by Mr Ranneberger.
“We need to engage the youth,” Gen Gration told the Senate Foreign Relations Committee. He said the US ambassador had a responsibility to convince young Kenyans; “it’s not about bullets; it’s about ballots
Press Release: 30.05.2011
Pre-Trial Chamber II confirms the admissibility of the two cases in the Kenyan situation
ICC-CPI-20110530-PR679
Today, 30 May 2011, Pre-Trial Chamber II of the International Criminal Court (ICC) rejected the Kenyan Government’s challenges to the admissibility of the two cases brought before the Court in the context of the situation in Kenya: The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang as well as The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali. The suspects had appeared voluntarily before the Chamber on 7 and 8 April 2011, following summonses to appear issued by the judges.
After careful analysis of the Kenyan Government’s applications and of the observations of parties and participants to the proceedings, Pre-Trial Chamber II considered that the applications do not provide concrete evidence of ongoing proceedings before national judges, against the same persons suspected of committing crimes falling under the ICC’s jurisdiction. Pre-Trial Chamber II also considered that the Government of Kenya failed to provide the Chamber with any information as to the conduct, crimes or the incidents for which the suspects are being investigated or questioned for. The Chamber concluded that “there remains a situation of inactivity and, consequently, that it cannot but determine that the case is admissible”.
The Government of Kenya may, within five days, file an appeal against these decisions, in accordance with article 82 (1)(a) of the Rome Statute and rule 154.1 of the Rules and Procedure and Evidence.
ICC-01/09-01/11
Case The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang
Situation in the Republic of Kenya
Public Court Records – Pre-Trial Chamber II
Decision: 30.05.2011
http://www.icc-cpi.int/iccdocs/doc/doc1078822.pdf
ICC-01/09-02/11
Case The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali
Situation in the Republic of Kenya
Public Court Records – Pre-Trial Chamber II
Decision: 30.05.2011
http://www.icc-cpi.int/iccdocs/doc/doc1078823.pdf
ICC judges throw out Kenya�s admissibility case
BY BERNARD MOMANYI
NAIROBI, Kenya May 30 – Judges at the International Criminal Court have dismissed a case filed by the Kenya government challenging the admissibility of cases facing five Kenyan leaders and a radio journalist accused of financing or planning the post election violence of 2007.
Presiding judge of the Pre-trial chamber II Ekaterina Trendafilova ruled that the case has no grounds because Kenya has failed to demonstrate that the suspects facing charges at the ICC are facing similar charges in their home country.
“Consequently, the Chamber cannot but determine that the case is admissible following a plain reading of the first half of article 17(l)(a) of the Statute. It follows that there is no need to delve into an examination of unwillingness or inability of the State, in accordance with article 17(2) and (3) of the Statute. The Government’s First Request must, therefore, be rejected,” the Judges ruled.
The court said although the information provided by Kenya reveals that instructions were given to investigate the suspects subject to the Court’s proceedings.
“The Government of Kenya does not provide the Chamber with any details about the asserted, current investigative steps undertaken. In the Reply, the Government of Kenya alleged that “a file was opened against one of the six suspects [probably Mr Ruto] on account of witness statements taken by the [investigative] team”. Yet, it does not provide the Chamber with any information about the time or content of these statements. The Government of Kenya also states that it has instructed the “team of investigators to carry out exhaustive investigations”, but it does not explain or show the Chamber any concrete step that has been or is being currently undertaken in this respect,” the three judges of Pretrial Chamber II stated in a ruling issued late Monday.
“In particular, the Chamber lacks information about dates when investigations, if any, have commenced against the three suspects, and whether the suspects were actually questioned or not and if so, the contents of the police or public prosecutions’ reports regarding the questioning. The Government of Kenya also fails to provide the Chamber with any information as to the conduct, crimes or the incidents for which the three suspects are being investigated or questioned for. There is equally no record that shows that the relevant witnesses are being or have been questioned. The remaining 26 annexes submitted by the Government of Kenya in support of its claim have no direct relevance to the legal test required under article 17(l)(a) of the Statute.”
Kenya had moved to the ICC court through lawyers—Sir Geoffrey Nice Q.C and Rodney Dixon, Barrister-at-Law—challenging cases facing the six Kenyans who made an initial appearance at The Hague in April.
Attorney General Amos Wako said at the time that the case was filed in accordance with Article 19 of the Rome Statute establishing the International Criminal Court: “Respectfully requesting the Pre-Trial Chamber to determine that the two cases currently before the ICC are inadmissible before the I.C.C”.
The ICC ruling comes a day after Ocampo expressed fears that the Kenya government was not committed to delivering justice to victims of the post election violence and accused President Mwai Kibaki and Prime Minister Raila Odinga of shielding suspects.
Ocampo has dispatched a high-powered team from his officer to meet the two leaders to get their assurances on the government’s position on the Kenyan case at The Hague.
“My question to the Kenyan government is this: does the government of Kenya want justice for the victims? We need an unequivocal answer, an answer that Kenyans and the world could understand,” Mr Ocampo said in a strongly-worded statement on Sunday.
“Is the government of Kenya protecting witnesses or protecting the suspects from investigation? That is the question,” he posed.
Attorney General Amos Wako on Monday dismissed Ocampo’s statement and maintained that the Kenya government was committed to delivering justice to the victims of the post election violence.
“I observe with great concern the statements attributed to Luis Moreno Ocampo questioning whether the government is protecting suspects from investigation and whether the government wants justice for the victims. Mr Ocampo has made many other unwarranted remarks,” Wako said in a statement sent from his office.
The team sent by Ocampo to meet the two principals was expected in Nairobi Monday night.
Soon after the government filed the admissibility challenge case, the Outreach Unit of the ICC warned that the case was unlikely to succeed because Kenya had not established a credible judicial mechanism to try the suspects locally.
The Outreach Unit of the ICC advised that such plans could only succeed if the persons accused were facing similar charges at their local national courts at the time of challenging The Hague trials.
“According to article 19 of the Rome statute, the Kenyan government can now challenge the admissibility of those cases, however the challenge has to be based on actual national proceedings prosecutions against the persons against the same crimes,” Gilbert Bitti senior legal advisor, of the pre-trial division of ICC said in a programme sent from The Hague.
“You cannot challenge admissibility of cases on the basis of future proceedings before eventually a future court to be established,” he had warned.
The government had argued that the cases against the six individuals were not admissible before the ICC because the country is in the process of reforming its judicial and police systems to be able to try them at home.
But the senior legal advisor, of the pre-trial division of ICC Mr Bitti warned that the case was unlikely to succeed.
“You have to challenge if you want to challenge admissibility on the basis of actual national proceedings otherwise the challenge may simply not be successful because that is the drafting and logic of Article 19, you can only challenge the admissibility of the case if you have genuine national prosecutions against the same persons for the same crimes,” he added.
Deputy Prime Minister who is also the Finance Minister Uhuru Kenyatta, Head of the Civil Service Ambassador Francis Muthaura, suspended Higher Education Minister William Ruto and Tinderet Member of Parliament Henry Kosgey who stepped aside to face charges of abuse of office appeared at the ICC in April where war crime charges were formally read to them.
Others who appeared in court are former Police Commissioner Mohammed Hussein Ali and Radio presenter Joshua arap Sang of Kass FM.
Their summonses to appear were issued in March following a majority ruling by the Pre-Trial Chamber judges who established that the six are criminally responsible for organizing or funding the post election violence which broke out in the country soon after the disputed presidential elections in 2008.