Mr Mutula Kilonzo
Minister for Justice, National Cohesion
and Constitutional Affairs
Kenya

Ref: OTP/KEN/191109/BLF

Date 19 November 2009


Your Excellency,

I would like to thank LL.EE. President Mwai Kibaki and Prime Minister Raila Odinga for their hospitality and availability during the Prosecutor's stay in Nairobi on 5th to 6th of November. The Office of the Prosecutor would in particular extend its appreciation to you for all the support and collaboration you have provided ahead of and during this visit.

As you must be aware on 6 November 2009, the Presidency of the International Criminal Court has assigned the situation in the Republic of Kenya to Pre-Trial Chamber II of the Court. Pre-Trial Chamber II is composed of Judge Hans-Peter Kaul from Germany, Judge Ekaterian Trendafilova from Bulgaria and Judge Cuno Tarfusser from Italy.

When a request for authorization of an investigation is made, Article 15 (3) of the Rome Statute provides that victims may make representations to the Pre-Trial Chamber. Under the Rules of Procedure and Evidence, the Prosecutor is furthermore obliged to provide notice to victims or their legal representatives of my intention to request authorization.

The Prosecutor intends to do so by public declaration. A press communiqué will be sent shortly to Kenyan media and civil society organizations, explaining to victims that under the regulations of the Court, they have 30 days to make representations to the Pre-Trial Chamber regarding the request to the Chamber to open investigation. The 30 days notice is solely for victims who intend to make representations to the PTC on whether the investigation should be opened. Victims who want to participate in the proceedings at a later stage will still have the opportunity to do so.

Lastly, I would like to inform you that the Office is making quick progress in preparing the request to the Pre-Trial Chamber for authorization to open an investigation. The Prosecutor intends to file this application by 27th November 2009 together with relevant supporting material collected during the preliminary analysis phase into the situation of the Republic of Kenya.

Please accept, Your Excellency, the assurances of my highest consideration.

Yours sincerely,
                                                                                                   
                                                           
Beatrice Le Fraper du Hellen
Director
Jurisdiction, Complementarity and Cooperation Division

Cc.:

- Mr Francis Muthaura, Secretary to the Cabinet of the Presidency
- Mr Miguna Miguna, Prime Minister's Advisor, Coalition Affairs
- Amb. Amina C. Mohamed, Permanent Secretary, Ministry of Justice, National Cohesion and Constitutional Affiars.