The government of Kenya has applied to the judges at the International Criminal Court (ICC) to quash the cases on the country’s 2007 post-election violence on grounds that they are inadmissible before the court. The 30-page application, submitted to the Pre-Trial Chamber by Sir Geoffrey Nice Q.C. and Rodney Dixon, Barrister-at-Law on behalf of Nairobi, reads: "The Government of Kenya respectfully requests the Pre-Trial Chamber to determine that both of these cases are inadmissible before the ICC in light of the information provided in this Application and that will be submitted to the Court”. The Kenyan government has maintained that there is no need for the ICC to be involved as the country will instigate its own investigation into the violence since the recent introduction of a new constitution and judicial reforms. The application states: "National courts will now be capable of trying crimes from the post-election violence, including the ICC cases, without the need for legislation to create a special tribunal, thus overcoming a hurdle previously a major stumbling block." The ICC is in place to complement national criminal proceedings and not to replace them, only prosecuting suspects if their own governments are unwilling or unable to do so, a point which is emphasised in the application.
The Kenyan government had filed the application on 29 March pursuant to Article 19 of the Rome Statute, which provides that a State may challenge the admissibility of a case before the ICC on grounds that it is conducting its own investigation or prosecutions of the case or has already investigated or prosecuted in relation to the case.
The three judges of Pre-Trial Chamber II will now decide on the merits of the application but the Court’s press statement made reference to the lack of specified time-limit on such a matter in the Rome Statute and the Rules of Procedure and Evidence of the Court. The Court also stated that the ongoing judicial proceedings will continue.
The so-called ‘Ocampo Six’ are due to appear before the ICC on Thursday 7 April and Friday 8 April. Deputy Prime Minister and Finance Minister Uhuru Muigai Kenyatta, Head of the Civil Service Francis Muthaura and former police chief Mohammed Hussein Ali are to appear on Friday, while former education minister William Ruto, Minister for Industrialisation Henry Kosgey and radio executive Joshua arap Sang are scheduled to make their initial appearance on Thursday. All face charges of crimes against humanity in relation to the post-election violence in Kenya in which 1,220 people were killed, 3,500 were injured and 350,000 displaced, as well as hundreds of rapes and the destruction of over 100,000 properties over a period of 30 days.
The Kenyan government maintains in its application it is "of vital importance to the national interest and future of Kenya and its people" that the cases be dropped.