Kenya to appeal ICC admissibility ruling

May 31, 2011 8:55 am

, NAIROBI, Kenya, May 31 – Attorney General Amos Wako has said that Kenya will appeal against the decision of the Pre-Trial Chamber II of the International Criminal Court (ICC) that threw out the country’s challenge to two cases against six Kenyans.

On Monday Judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser rejected Kenya’s plea that it has put mechanisms in place to try the post election violence perpetrators.

In a statement issued from the Netherlands on Tuesday, Mr Wako said he was surprised that the Pre-Trial Chamber II judges didn’t give Kenya an opportunity to present oral evidence to the court in support of its case.

“This issue of giving an opportunity to the State Party which has applied for it, an oral hearing is fundamental to the development of international criminal law. The Government of Kenya is therefore reviewing the ruling with a view of appealing against both decisions to the Appeals Chambers of the ICC,” Mr Wako said.

“The Government of Kenya is confident that the Appeals Chambers will not only receive up to date information of the progress of investigations the Pre-Trial Chamber declined to receive, but that, by the time of the hearing of the Appeal, yet further reforms will have taken place demonstrating that these cases can be tried in Kenya itself.”

Mr Wako however seemed to state that the Appeal could only succeed on the manner and speed Kenyan leaders can take up constitutional reforms.

“Any squabbling and acrimonious debate and delays in timeous implementation of the Constitution only sends negative signals and makes Government’s success difficult,” he said.

“Let us therefore resolve to pursue the reforms soberly, expeditiously and with maximum determination.”

Mr Wako said he will be meeting the Kenya Government lawyers Sir Geoffrey Nice, Q.C and Rodney Dixon in London on Friday to take up the Appeal.

On Monday the Pre-Trial Chamber II dismissed the case saying the government had failed to demonstrate to the court that it was investigating the six suspects for the alleged crimes.

In the ruling against Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura and former Police Commissioner Hussein Ali, the judges said: “In the absence of information, which substantiates Government of Kenya\’s challenge that there are ongoing investigations against the three suspects, up until the party filed its reply, the Chamber considers that there remains a situation of inactivity."

While in the case against Eldoret North MP William Ruto, Tinderet MP Henry Kosgey and radio presenter Joshua arap Sang they ruled: "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 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.

Mr 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 had 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,” Mr Wako said in a statement sent from his office.

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