In a decision issued by the Pre Trial Chamber II, presiding judge Ekaterina Trendafilova said the reasons given by Kenya to appeal were irrelevant to the court/FILE
NAIROBI, Kenya, Jun 6 – The International Criminal Court (ICC) has once again refused to furnish Kenya with evidence it has against the four Kenyans accused of crimes against humanity.
In a decision issued by the Pre Trial Chamber II, presiding judge Ekaterina Trendafilova said the reasons given by Kenya to appeal were irrelevant to the court.
“The chamber hereby rejects the application and orders the registrar to notify this decision to the Government of the Republic of Kenya,” Trendafilova ruled.
On July 24, 2011 Kenya lodged an application directly to the Appeals Chamber after the Pre Trial Chamber refused to give it the investigation materials.
It again requested for leave to appeal from the Pre Trial Chamber on July, 4 which was also rejected.
Kenya based its reasons to appeal on “error of fact in holding that the cooperation request lacked any documentary proof that there is or has been an investigation.”
It also argued that there was an ‘error of procedure by not allowing the Government of Kenya to reply to the Prosecutor’s response to the movement of Kenya’s cooperation request of 10 May 2011’ and further complained to the court that there was an ‘error of law in holding that the Chamber could not order the Prosecutor to provide any material or evidence in his possession to a State pursuant to a request under Article 93(10).5.”
However, Judge Hans-Peter Kaul, Judge Cuno Tarfusser and Trendafilova rejected the appeal explaining that whether Kenya did local investigations or not, it will not affect the ICC investigations against Uhuru Kenyatta, William Ruto, Francis Muthaura and Joshua arap Sang.
“The Chamber considers that the reference to “proceedings” in the context of article 82(l) (d) of the Statute aims only at the judicial process before the Court. Given that the subject-matter of the decision on the cooperation request concerns national proceedings and that the issues allegedly amounting from this decision subject to appeal also relate to domestic activities, the Chamber is of the view that “issue(s)” of such a nature would not affect the fair or expeditious conduct of the proceedings or the outcome of the trial before the Court as required by article 82(l) (d). Accordingly, the Chamber finds no need to either address in any detail the requirements under article 82(l) (d) of the Statute or engage with the merits of the Application,” the judges ruled.
This means Kenya will not obtain the materials from the ICC prosecution which it explained it required to open a local trial for the Kenyan suspects.
Kenya made the first attempt in April, 2011 when it requested for statements, documents and other types of evidence obtained by ICC prosecutor during investigations into the post election violence including the four accused together with Henry Kosgey and Hussein Ali who were cleared by the court on January, 23 this year.
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