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ICC judges caution Kenyan litigants

NAIROBI, Kenya Feb 22 – Judges at the International Criminal Court have warned Kenyan litigants against filing applications on matters they have already ruled upon.

They issued the caution when dismissing a case filed by radio presenter Joshua arap Sang since they had ruled in similar applications by former Police Commissioner Hussein Ali and Eldoret North MP William Ruto.

"In the context of the present decision, the Chamber finds no reason to examine the application on the merits, given that it raises similar issues as those dealt with respect to William Ruto and Mohammed Hussein Ali," the Judges said in a  ruling posted on the ICC website.

More importantly, the judges ruled: "Once the Chamber has detected that the person concerned lacks a procedural standing before the Court, it should primarily refrain from delving into  the merits of his/her application, save for exceptional situations where it deems necessary to ensure, for instance, future clarity, judicial economy and expeditiousness of the proceedings."

"The Chamber reiterated the same finding in a further decision issued the same day with regard to Mohammed Hussein Ali, a further person under the Prosecutor\’s

investigation," they said in their ruling.

They added: "Although the applicant lacked the locus standi, the Chamber decided to entertain the merits of his request merely "for the sake of clarity and with a view to avoiding to be approached again in the future with same or similar requests"."

The judges therefore, ruled that "the application submitted by Mr Sang must be rejected."

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Mr Sang, a radio presenter at KASS FM had sought leave of the court to participate in the proceedings lodged by Prosecutor Luis Moreno-Ocampo under Article 58(7) of the Rome Statute.

In the application filed through his lawyer Katwa Kigen, Mr Sang had also prayed for orders to bar issuance of summons or warrants of arrest before his case was heard and determined.

And the judges have now warned all the six suspects that they will not be allowed to be part of the proceedings until Mr Ocampo\’s application that seeks their summonses to appear is heard and determined.

"Until it has ruled on the Prosecutor\’s applications for summons to appear, none of the persons under the court\’s investigation is allowed to participate even by way of submitting observations on the said applications. The Chamber, therefore, does not consider a person, against whom a summons to appear has been requested, as having locus standi," they ruled.

Mr Sang had also asked the court to give access and disclosure of any material, submissions or filings generally made by any other participant in the proceedings relating to the Kenyan situation with leave to participate in such other fillings.

Other prayers include an order that the court does find that no summons or warrants of arrest may issue on the applicant until and unless the Office of the Trial Prosecutor has demonstrated to the court that it has complied with Article 54 of the Rome Statute and more particularly that it has investigated exonerating evidence inclusive of notifying, and where possible interviewing the Applicant/suspect on the concise grounds of the charges in the manner equivalent to the effort applied by the prosecutor to investigating incriminating evidence.

Similar applications had been made by Mr Ruto and Major General (Rtd) Hussein Ali.

Mr Sang had particularly argued that "The Prosecutor is acting out of ulterior motives that are unrelated to the cause of justice; or the Prosecutor is incompetent; or the Prosecutor is disinterested to competently investigate the Kenyan Situation and case with any desire for justice and or with any objectivity.

The ruling was delivered by judges Ekaterina Trendafilova, Judge Hans-Peter and Kaul Judge Cuno Tarfusser.

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