ICC Four may be tried pending appeal ruling

Presidential aspirants Uhuru Kenyatta and William Ruto could face trial even before International Criminal Court judges decide on their appeal.

The Appeals Chamber on Thursday rejected their requests and those of former Public Service boss Francis Muthaura and Kass FM Radio presenter Joshua arap Sang that the trials be suspended until their challenges on jurisdiction are dispensed with. (READ: Ocampo Two fight PNU-Mungiki link)

Given leeway

Appeals Chamber presiding judge Akua Kuehenyia ruled that there was no reason for the proceedings against the Ocampo Four to be suspended.

However, the Ghanaian judge added that the accused or the prosecutor may request the court to delay the trial until the appeals are heard.

The ruling gives the court’s presidency the leeway to constitute a Trial Chamber to try the four post-election violence suspects.

This is if the Pre-Trial Chamber denies the four an opportunity to appeal its January 23 decision committing them to trial.

The Appeals Chamber judges said that if they eventually decide to grant the appeal, any ongoing proceedings would be discontinued at that time.

According to the Rome Statutes, the Appeals Chamber may confirm, reverse or amend the Pre-Trial Chamber judges’ decision over jurisdiction.

Suspensive effect

“The Appeals Chamber emphasises that the present decision is concerned only with the request for suspensive effect,” judge Kuehenyia said in the ruling.

In their application, the suspects had requested the Appeals Chamber to reverse the definition of the term “organisation policy” by two of the Pre-Trial Chamber judges as well as its evidentiary finding that the Prosecutor “had submitted sufficient evidence of substantial grounds to believe that the crimes were committed” by them in furtherance of an organisation policy.

The suspects told the Appeals Chamber to declare that the Court does not have jurisdiction in this instance and reverse the Pre-Trial judges confirmation of charges against them.

Specific criteria

Their applications were supported by Prosecutor Luis Moreno-Ocampo who said that the suspension should be granted though he noted that the appellants have not met the very specific criteria established by the Court for suspensive effect.

“However, the Prosecution also notes that in the light of the exceptional circumstances of the Kenya case — the fundamental nature of the issue being appealed and the significant and complicated need to implement witness protection measures — the Presidency or a Trial Chamber might nonetheless deem it to be in the interest of justice not to start the trial proceedings before the Appeals Chamber makes a final determination on whether this case falls within the jurisdiction of the Court,” Mr Moreno-Ocampo said.