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Government bids on ICC at odds

NAIROBI, Kenya, Mar 10 – An international law expert has questioned the government\’s double-pronged approach in challenging the case against six Kenyans before the International Criminal Court (ICC) saying the two bids negate each other.

Godfrey Musila told Capital News that challenging the admissibility of the cases while at the same time seeking a deferral is likely to work against each other.

He argued that Kenya was better off challenging the admissibility of the cases and questioning the Court\’s jurisdiction, in accordance with Article 19 of the Rome Statute. He prefers this route to the pursuit of a deferral, which he termed as a non-starter approach.

"A number of permanent members of the UN Security Council have suggested that they will not support the deferral motion. The UK and the US have suggested that they will veto the application if it got to the Council\’s agenda so the deferral has no chance whatsoever," he said.

He further explained that if Kenya succeeded in challenging the admissibility of the cases, then it would have to demonstrate that it had a credible judicial mechanism equal to that of the ICC.

But even if Kenya managed to create such a system, the ICC would still supervise it, with the powers to resume the cases should it feel that Kenya\’s internal mechanism did not meet a threshold of standards.

"So if we put in place a sham process then the judges will make a judgment on that," he said.

In addition, he said, the local court must try the six Kenyan suspects for the same crimes that are before the ICC.

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"So we can\’t come and charge them with theft when they are being charged with rape, displacement of communities, inhuman treatment and murder," said Mr Musila.

But when Kenya challenges the admissibility of the case, the ICC Prosecutor would also get an opportunity to make a counter argument. Mr Musila noted that victims of the post election chaos would also get a chance to give their own views on whether or not they believe the cases should proceed.

"The Prosecutor will make his own representations and he will be giving reasons why he is the best person to prosecute the cases. He may point to things like Kenya\’s lack of a proper legislation, corruption issues or the lack of faith in local systems," he said.

Challenging the jurisdiction of the Court
The law expert also explained that by challenging the court\’s jurisdiction, Kenya would have to prove that crimes against humanity were not committed during the post election violence and that if they were, then it had the capacity to deal with them.

The ICC only handles crimes against humanity and Kenya does not have a law that accommodates such crimes so it would have to create one.

"The penal code doesn\’t count because it does not provide provisions for the prosecution of crimes against humanity. The International Crimes Act, which domesticates the Rome Statute, is also not applicable because it came into effect in January 2009, after the violence had occurred," explained Dr Musila.

He further argued that the fact that one of the judges of the Pre-Trial Chamber opposed the issuance of summonses would somewhat aid the defence of the ICC suspects.

"I think Judge Hans-Peter Kaul made very strong arguments that can be used by the accused and the government in saying that the court lacks jurisdiction. The problem is, that it is the same three judges who will be deciding," he said.

It is also important to note that a deferral can be sought at any point and it does not matter how far the prosecution processes might have gone.

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