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ICC judges throw out Kenya’s admissibility case

NAIROBI, Kenya May 30 – Judges at the International Criminal Court have dismissed a case filed by the Kenya government challenging the admissibility of cases facing five Kenyan leaders and a radio journalist accused of financing or planning the post election violence of 2007.

Presiding judge of the Pre-trial chamber II Ekaterina Trendafilova , Judge Hans-Peter Kaul and Judge Cuno Tarfusser ruled that the case has no grounds because Kenya has failed to demonstrate that the suspects facing charges at the ICC are facing similar charges in their home country.

“Consequently, the Chamber cannot but determine that the case is admissible following a plain reading of the first half of article 17(l)(a) of the Statute. It follows that there is no need to delve into an examination of unwillingness or inability of the State, in accordance with article 17(2) and (3) of the Statute. The Government\’s First Request must, therefore, be rejected,” the Judges ruled.

The court said although the information provided by Kenya reveals that instructions were given to investigate the suspects subject to the Court\’s proceedings.

“The Government of Kenya does not provide the Chamber with any details about the asserted, current investigative steps undertaken. In the Reply, the Government of Kenya alleged that "a file was opened against one of the six suspects [probably Mr Ruto] on account of witness statements taken by the [investigative] team". Yet, it does not provide the Chamber with any information about the time or content of these statements. The Government of Kenya also states that it has instructed the "team of investigators to carry out exhaustive investigations", but it does not explain or show the Chamber any concrete step that has been or is being currently undertaken in this respect,” the three judges of Pretrial Chamber II stated in a ruling issued late Monday.

“In particular, the Chamber lacks information about dates when investigations, if any, have commenced against the three suspects, and whether the suspects were actually questioned or not and if so, the contents of the police or public prosecutions\’ reports regarding the questioning. The Government of Kenya also fails to provide the Chamber with any information as to the conduct, crimes or the incidents for which the three suspects are being investigated or questioned for. There is equally no record that shows that the relevant witnesses are being or have been questioned. The remaining 26 annexes submitted by the Government of Kenya in support of its claim have no direct relevance to the legal test required under article 17(l)(a) of the Statute.”

Kenya had moved to the ICC court through lawyers—Sir Geoffrey Nice Q.C and Rodney Dixon, Barrister-at-Law—challenging cases facing the six Kenyans who made an initial appearance at The Hague in April.

Attorney General Amos Wako said at the time that the case was filed in accordance with Article 19 of the Rome Statute establishing the International Criminal Court: “Respectfully requesting the Pre-Trial Chamber to determine that the two cases currently before the ICC are inadmissible before the I.C.C”.

Read full rulings here

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The ICC ruling comes a day after Ocampo expressed fears that the Kenya government was not committed to delivering justice to victims of the post election violence and accused President Mwai Kibaki and Prime Minister Raila Odinga of shielding suspects.

Ocampo has dispatched a high-powered team from his officer to meet the two leaders to get their assurances on the government’s position on the Kenyan case at The Hague.

“My question to the Kenyan government is this: does the government of Kenya want justice for the victims? We need an unequivocal answer, an answer that Kenyans and the world could understand,” Mr Ocampo said in a strongly-worded statement on Sunday.

“Is the government of Kenya protecting witnesses or protecting the suspects from investigation? That is the question,” he posed.

Attorney General Amos Wako on Monday dismissed Ocampo’s statement and maintained that the Kenya government was committed to delivering justice to the victims of the post election violence.

“I observe with great concern the statements attributed to Luis Moreno Ocampo questioning whether the government is protecting suspects from investigation and whether the government wants justice for the victims. Mr Ocampo has made many other unwarranted remarks,” Wako said in a statement sent from his office.

The team sent by Ocampo to meet the two principals was expected in Nairobi Monday night.

Soon after the government filed the admissibility challenge case, the Outreach Unit of the ICC warned that the case was unlikely to succeed because Kenya had not established a credible judicial mechanism to try the suspects locally.

The Outreach Unit of the ICC advised 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.

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"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 had warned.

The government had argued that the cases against the six individuals were 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 warned that the case was 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.

Deputy Prime Minister who is also the Finance 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 appeared at the ICC in April where war crime charges were formally read to them.

Others who appeared in court are former Police Commissioner Mohammed Hussein Ali and Radio presenter Joshua arap Sang of Kass FM.

Their summonses to appear were issued in March 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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