, NAIROBI, Kenya, Mar 3 – The trial of the four Kenyans before the International Criminal Court (ICC) may not kick off as yet, despite the court rejecting their application to the Appeals Chamber to suspend the case until a ruling is made on their appeal to challenge jurisdiction.
International Lawyer Godfrey Musila told Capital News that the rejection of part of the appeal on Wednesday did not mean a Trial Chamber will automatically be constituted to try Francis Muthaura and Deputy Prime Minister Uhuru Kenyatta.
“This does not mean the trial will start because once the Trial Chamber is constituted, both Ocampo and the defence can apply to the Trial Chamber not to start its work until the Appeals Chamber rules on jurisdiction,” he said.
The two separately in their applications wanted the ICC President stopped from constituting a Trial Chamber until the Appeals Chamber ruled on their applications which argue that the crimes committed in Kenya do not meet the ICC threshold hence to be tried at the Hague-based court.
ICC Outreach Programme Coordinator Maria Kamara told Capital News the Appeals Chamber also rejected the application in view that if there was a wrong decision made, it can always be corrected.
“It rejected the requests considering that the implementation of the findings in the confirmation of charges decision that the Chamber had jurisdiction with respect to the case would not lead to an irreversible situation that could not be corrected were the Appeals Chamber eventually to find in favour of the suspects,” she asserted.
Musila also felt that the Appeal Judges think there will be no unfairness if the ICC President proceeds to constitute a Trial Chamber before the ruling on jurisdiction challenge.
“What the judges have said is that there will be no prejudice on the accused if the Trial Chamber is constituted even before the Appeals Chamber rules on whether the ICC can try these cases or not,” he asserted.
However according to the Appeals Chamber, the Prosecutor is not keen to proceed with the trial until the conclusion of the Appeal process following applications by the four accused.
In his response to Kenyatta and Muthaura’s request to have their trial suspended, Prosecutor Moreno Ocampo had indicated that it would be in the interest of justice for postponement of the commencement of the trial until the ruling of the Appeals Chamber.
“That therefore “the appellants or the Prosecution, or both, may in the alternative request the Presidency to delay constituting a Trial Chamber or may request a constituted Trial Chamber itself to delay commencement of further proceedings,” the ICC website indicated.
The Prosecutor proceeded to set out two factors that he submitted may favour delaying the trial in the interests of justice.
“First, that the issue should be resolved prior to the trial itself in light of the nature of the jurisdictional challenge made; and second, that postponement would serve the interests of prospective witnesses. In addition, given that Kenyatta and Muthaura were not in detention and had themselves requested suspensive effect there was, in the submission of the Prosecutor, ‘no countervailing interest pressing for the prompt commencement of trial proceedings.”
The four accused whose charges were confirmed on January 23 all appealed challenging jurisdiction and the decision of the Pre Trial Chamber which dropped charges against Henry Kosgey and Hussein Ali.
They are facing charges of crimes against humanity following the post election violence in Kenya which claimed 1,500 deaths and displaced 500,000 people.