NAIROBI, Kenya Mar 31 – The government has now formally filed an application at the International Criminal Court challenging cases facing six Kenyans summoned to make an initial appearance at The Hague next week.
Attorney General Amos Wako said on Thursday that the government had hired Counsels, Sir Geoffrey Nice Q.C and Rodney Dixon, Barrister-at-Law to handle the suit.
"This is to confirm that Counsels, Sir Geoffrey Nice Q.C. and Rodney Dixon, Barrister-at-Law have today, on behalf of the Government of Kenya, filed an application pursuant to Article 19 of the Rome Statute establishing the International Criminal Court (ICC), respectfully requesting the Pre-Trial Chamber to determine that the two cases currently before the ICC are inadmissible before the I.C.C," Wako said in a statement sent from his office.
The brief statement did not however, provide more details.
But even as the government filed the admissibility case, the ICC warned that the suit had little chances of success because Kenya has not established a credible judicial mechanism to try the suspects locally.
The Outreach Unit of the ICC advised last month that such plans could only succeed if the persons accused were facing similar charges at their local national courts at the time of challenging The Hague trials.
"According to article 19 of the Rome statute, the Kenyan government can now challenge the admissibility of those cases, however the challenge has to be based on actual national proceedings prosecutions against the persons against the same crimes," Gilbert Bitti senior legal advisor, of the pre-trial division of ICC said in a programme sent from The Hague.
"You cannot challenge admissibility of cases on the basis of future proceedings before eventually a future court to be established," he warned.
Sources privy to the suit filed in The Hague told Capital News that the government had argued that the cases against the six individuals are not admissible before the ICC because the country is in the process of reforming its judicial and police systems to be able to try them at home.
But the senior legal advisor, of the pre-trial division of ICC Mr Bitti warns that this is unlikely to succeed.
"You have to challenge if you want to challenge admissibility on the basis of actual national proceedings otherwise the challenge may simply not be successful because that is the drafting and logic of Article 19, you can only challenge the admissibility of the case if you have genuine national prosecutions against the same persons for the same crimes," he added.
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.
Their summonses to appear were issued last month following a majority ruling by the Pre-Trial Chamber judges who established that the six are criminally responsible for organizing or funding the post election violence which broke out in the country soon after the disputed presidential elections in 2008.
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