, 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.
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