, NAIROBI, Kenya, Mar 17 – The International Criminal Court (ICC) Prosecutor Luis Moreno Ocampo has now filed an application challenging the decision of the court in rejecting part of his case against Uhuru Kenyatta, Mohammed Hussein Ali and Francis Muthaura.
The court had in its decision in which it issued summonses against the Ocampo Six exonerated police from blame over killings in Kibera and Kisumu saying the crimes were not committed as a State policy.
“The standard adopted could, if not corrected, provide impunity for criminal activity directly perpetrated by the police or encouraged by its deliberate failure to act,” Mr Ocampo says in his application, which was filed on Monday.
The prosecutor is also appealing against the decision by the Pre-Trial Chamber that disqualified forcible circumcision of adult males as an act of sexual violence and instead characterised it as “other inhumane acts”.
“Both issues require immediate appellate consideration. Because they bear on the criminal charges that these suspects will be called upon to answer, they must be resolved now, else the prosecution will be irremediably prevented from pursuing its factual and legal theory of the case,” the prosecutor said in his application.
“Intervention by the Appeals Chamber on these fundamental issues can guarantee that the proceedings continue on a sound basis that is consistent with the Rome Statute.”
Mr Ocampo says the judges do not have the legal authority to change the character of crimes as stipulated by the prosecutor without explanation or legal support.
Mr Ocampo alleges Mr Muthaura and Mr Ali had instructed police to use excessive force and not to interfere with the Mungiki but the judges had ruled that such could be classified as organisational policy as opposed to State policy and would not constitute a crime against humanity as stipulated under the Rome Statute.
However, the Pre-Trial Chamber rejected the application arguing that the police could only be held accountable for the crimes in Naivasha and Nakuru if they acted pursuant to a “State policy by abstention”.
READ OCAMPO’S APPLICATION HERE
Last week ICC summoned the Ocampo Six 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 on Thursday, 7 April 2011.
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.
Messrs Ruto, Kosgey and arap Sang have been ordered to appear at 0930 hours (The Hague time) for the purposes of the hearing to be held pursuant to Article 60 of the Statute while Messrs Kenyatta, Muthaura and Hussein Ali will be required to appear at 14.30 hours on the same day.
The ruling had been endorsed by Judges Cuno Tarfusser and Ekaterina Trendafilova but was opposed by Judge Hans-Peter Kaul who later issued his dissenting views.
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