NAIROBI, Kenya, Aug 30 – The Kenyan government has lost a last ditch effort to stop two cases before the International Criminal Court barely two days to the start of confirmation of hearings, after the Appeals Chamber ruled that the matter was properly before the court
Daniel David Ntanda Nsereko, the presiding judge at the Appeals Chamber said; “No legal, factual or procedural error could be discerned in the Pre-Trial Chamber’s decision of 30 May 2011.”
“For the cases to be inadmissible, a national investigation must be ongoing and must cover the same individuals and substantially the same conduct as alleged in the proceedings before the ICC. Furthermore, the Appeals Chamber considered that the Pre-Trial Chamber made no error when it found that the Government of Kenya had failed to provide sufficient evidence to substantiate that it was investigating the six suspects for the crimes alleged in the summonses to appear issued for them,” the judge explained.
According to a statement from the ICC Public Information Office, the judgment was adopted by majority, with Judge Anita Ušacka dissenting.
Tuesday’s decision by the Appeals Chamber removed the last obstacle in the run-up to confirmation of charges hearings against Eldoret MP William Ruto, Radio presenter Joshua arap Sang and Tinderet MP Henry Kosgey which kick off on Thursday.
Deputy Prime Minister and Finance Minister Uhuru Kenyatta, Mr Muthaura and Postmaster General Hussein Ali are due to appear before the ICC on September 12.
The rejection means that the ICC is the proper place to deal with the suspects of Kenya’s post-election violence. Appeal judges at the ICC in The Hague ruled that Kenya had not shown that it was investigating or prosecuting the so-called Ocampo Six.
The Kenyan government had appealed after the Pre-Trial Chamber admitted the two cases against the six Kenyans and issued summonses.
Kenya had told the ICC to halt its investigations as the government had started questioning the suspects.
Mr Ruto and Mr Kosgey were questioned by the police over their alleged involvement during the violence, while Head of Civil Service Ambassador Francis Muthaura declined to be grilled by the police.
The process by Kenyan police has been criticised by the ICC and even Kenyans who claim not to have confidence in their investigations.
The principle of complementarity
The Kenyan government claims it can deal with the cases itself and that there is no need for the ICC to interfere. It argues that Kenya has implemented constitutional and judicial reforms, and is in the process of investigating the cases nationally.
If so, the ICC would lack jurisdiction because of the principle of complementarity. This principle allows the ICC to intervene only if the national authorities do not investigate or prosecute, or is otherwise unwilling or unable genuinely to carry out proceedings against the suspects for the same alleged crimes.
The ICC judges at a Pre-Trial Chamber in May dismissed Kenya’s application because it did not provide concrete evidence of ongoing proceedings before national judges, against the same persons suspected of committing crimes falling under the ICC’s jurisdiction.
The judges also considered that Nairobi failed to provide the chamber with any information as to the conduct, crimes or the incidents for which the suspects are being investigated or questioned. The chamber concluded that “there remains a situation of inactivity and consequently, that it cannot but determine that the case is admissible.”
More than 1,300 people were killed and hundreds of thousands displaced, following disputed elections in December 2007. After the dust settled, the Kenyan Parliament voted down a bill to establish a tribunal to prosecute those responsible for the killings, rapes and forced evictions that took place during the fighting.
The 30-day bloodshed between Kenya’s Orange Democratic Movement and the Party of National Unity damaged the country’s reputation for stability in an otherwise turbulent region.
Because Nairobi, which is a signatory to the Rome Statute, chose not to send an official invitation to the prosecutor, Ocampo took matters into his own hands. In May 2010 he started investigating crimes against humanity. It took a year to bring his investigation before the Court in two cases.
Kenya’s Deputy Prime Minister Uhuru Kenyatta is in the dock together with the head of the country’s civil service Francis Muthaura and former police Chief Hussein Ali. They are charged with murder, deportation, persecutions and rape.
The other case comprises former Higher Education Minister William Ruto, former Minister for Industrialisation Henry Kosgey and radio host Joshua arap Sang.
They are accused of being part of a “network targeting members of the civilian population supporting the PNU, in order to punish them and evict them from the Rift Valley with the ultimate goal of gaining power and creating a uniform ODM voting bloc.”
The Ocampo Six
Dubbed the ‘Ocampo Six’, they are all accused of crimes against humanity.
Uhuru Kenyatta and William Ruto, who have both announced that they intend to run for president in 2012, reject the charges, saying they are politically motivated because other contenders, who were already on the political stage at the time of the atrocities, are not on Ocampo’s list.
The suspects had appeared voluntarily before the court on April 7 and 8, 2011 following summonses to appear issued by the judges.
(Radio Netherlands Worldwide contributed to this report)