ICC rejects Kenya's admissibility challenge 31 May 2011
The International Criminal Court has rejected the Kenyan government's challenge to its cases against six suspects accused of orchestrating violence in the aftermath of disputed 2007 elections.

On Monday Kenya’s bid to halt the ICC investigation was thrown out when judges said that a there was no evidence of a national investigation into the 2007 post-election violence, in which more than 1,200 people were killed. The Kenyan government, in a March submission challenging the admissibility of the case, had claimed that as a result of the adoption of its new constitution and other reforms, it was now capable of investigating the six suspects. A challenge to the ICC’s admissibility would only succeed if the accused were facing similar charges at their local national courts at the time of the challenge.

However, the Pre-Trial Chamber II judges ruled that there was no "concrete evidence of ongoing proceedings before national judges." The Kenyan government, represented by Geoffrey Nice and Rodney Dixo, had filed their submission with 24 annexes. One such annex was a letter from the Attorney-General in which he ordered the Police Commissioner to investigate and determine the identities of those who masterminded the violence. However, the letter was written after the date upon which the government had filed its submission to the ICC. The submission also included a list of concluded cases which related to crimes during the post election violence, the promulgation of the new Constitution, and the number of Bills that had been enacted by Parliament to reform the judiciary, the police and the Department of Prosecutions. However, of the 24 attachments, the Pre-Trial Chamber found only three were of relevance to the government’s case. The Pre-Trial Chamber ruled that: “Although the information provided in these two annexes reveals that instructions were given to investigate the three 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”.

The ruling issued by the Pre-Trial Chamber II judges, Presiding Judge Ekaterina Trendafilova, Judge Hans-Peter Kaul and Judge Cuno Tarfusser, also said that the Government of Kenya had “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 for”. This led the Chamber to conclude that “there remains a situation of inactivity and, consequently, that it cannot but determine that the case is admissible”. Judge Kaul was in agreement with the admissibility ruling, despite dissenting when Mr Moreno-Ocampo had originally sought to commence investigations. The three judges were unanimous that the government had not embarked on any investigations and dismissed the Kenyan Government’s case. As a result of the ruling, the case will now proceed with hearings for the confirmation of charges on 1 and 21 September.

The suspects charged by prosecutor Luis Moreno-Ocampo are the former Minister of Industrialisation Henry Kiprono Kosgey, Cabinet secretary Francis Kirimi Muthaura, Kass FM executive Joshua Arap Sang, former Police Commissioner Hussein Ali, Deputy Prime Minister Uhuru Kenyatta and former Education Minister William Samoei Ruto. The latter two are potential presidential candidates in the next election. The six suspects made their initial appearances before the Chamber on 7 and 8 April.

The Government of Kenya may appeal this decision, in accordance with article 82 (1)(a) of the Rome Statute and rule 154.1 of the Rules and Procedure and Evidence. It has five days to do so.

Meanwhile, the day before the issuing of the decision by the Pre-Trial Chamber, Mr Moreno-Ocampo accused Kenyan government officials of creating a "climate of fear" by intimidating potential ICC witnesses and undermining national and international investigations. He also accused President Mwai Kibaki and Prime Minister Raila Odinga of shielding suspects and failing to demonstrate a commitment to justice for the victims of the violence. The Office of the Prosecutor has now sent a team to meet the two leaders to ascertain the government’s official position on the ICC case. Mr Moreno-Ocampo’s statement read:  “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”.

The Kenyan Attorney General, Mr Amos Wako, dismissed the statement by Mr Moreno-Ocampo, maintaining that the Kenya government was indeed committed to delivering justice to victims. Mr Wako stated:  “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”.

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