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ICC judge rejects Ocampo appeal

NAIROBI, Kenya Apr 1 – A Judge at the International Criminal Court has rejected an application filed by Prosecutor Luis Moreno-Ocampo seeking the inclusion of violence that was committed in Kibera and Kisumu where hundreds of innocent people were shot dead by the police.

In his appeal, Mr Ocampo had argued that he had sufficient evidence to show that three of the suspects wanted for crimes against humanity committed in Kenya during the post election violence were responsible in planning chaos in the two jurisdictions in the context of organisational state policy.

The three include Deputy Prime Minister Uhuru Kenyatta, Head of the civil Service Ambassador Francis Muthaura, and Postmaster General Mohammed Hussein Ali who served as Police Commissioner at the time.

The presiding judge at the ICC\’s Pre-Trial Chamber II Ekaterina Trendafilova ruled that the three could be held responsible for what Mr Ocampo had referred to as organisational state policy because "there is no evidence showing that there was any such policy."

Justice Trendafilova was one of the judges who issued a majority ruling summoning six Kenyan suspects to the ICC next week for an initial appearance [the three included] but declined to include violence in Kibera and Kisumu.

"Firstly, the single judge recalls that, under the Statute, a person cannot be charged with establishing, participating in or contributing to a policy but can only be charged with the crimes committed in the context of a widespread and systematic attack against the civilian population carried out pursuant to or in furtherance of a State or organizational policy," Judge Trendafilova ruled on Friday.

In this sense, the judge said: " For a person to be considered responsible for crimes against humanity under the Statute, it is not necessary that the policy pursuant to which the attack was carried out be attributable to that person; it is necessary only that the person committed or contributed to the commission of a crime in the knowledge that his or her criminal conduct was part of a widespread or systematic attack against a civilian population in furtherance of a State or organisational policy."

The Prosecutor had also argued in his application filed mid last month that failure to incorporate the crimes committed in Kibera slum and Kisumu will amount to prejudice of the case.

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"Accordingly, the single judge is not persuaded by the arguments put forward by the Prosecutor to demonstrate that the Issue affects the fairness of the proceedings currently before the Chamber or the outcome of the related trial," she ruled.

She also observed that "as a matter of law, the concerns raised by the Prosecutor with respect to the prejudice allegedly caused by the 8 March 2011 Decision have no grounds in the statutory documents of the Court."

In dismissing Mr Ocampo\’s application, the judge observed that: "The arguments of the Prosecutor completely disregard the findings of the Chamber that there were reasonable grounds to believe that Mr Muthaura and Mr Ali were responsible for the crimes committed in the context of a widespread and systematic attack against the civilian population carried out pursuant to the organizational policy of the Mungiki.

"The Chamber indeed found that both Mr Muthaura and Mr Ali – pursuant to different modes of liability – contributed to the commission of the crimes in Nakuru and Naivasha, using their authority over the Kenyan Police Forces and thus by virtue of their position within the State apparatus."

Summonses for them to appear were subsequently issued and Mr Kenyatta, Mr Muthaura and Major General (Rtd) Ali are now required to face the judges on Friday next week.

The three other suspects are suspended Higher Education Minister William Ruto, Tinderet MP Henry Kosgey and Kass FM Radio Presenter Joshua arap Sang were ordered to appear on Thursday next week.

Meanwhile, the government on Friday requested the ICC judges to grant it a hearing on Thursday or Friday next week for the case it filed challenging the admissibility of the cases against the six Kenyan suspects at The Hague.

British lawyers Sir Geoffrey Nice QC and Rodney Dixon who have been retained by the government pleaded to the court to hear the cases expeditiously when the six suspects appear there next week.

"The Government requests that it be afforded a separate time allocation to have an opportunity to address briefly the Pre-Trial Chamber on one or both of the hearings\’ days of 7/8 April 2011, as the Court may decide in circumstances where the parties can be present," the two lawyers pleaded in their application.

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The lawyers state in their application that Kenya is now capable of trying the suspects in Nairobi because there is a new constitution in place which sets out clear timelines guiding the reform process in the judiciary and the police departments.

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