Kenya faces uphill task over deferral
International Criminal Court prosecutor Luis Moreno-Ocampo. To successfully argue the case, Kenya will be required to prove that the Ocampo Six and other perpetrators of the violence are either being investigated or prosecuted over the crimes. Photo/FILE
What you need to know:
Article 17 of the Rome Statute
The case is inadmissible where it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to carry out the investigation or prosecution;
The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; or the person concerned has already been tried.
The bid to block the International Criminal Court from charging the Ocampo Six is a daunting task for the government.
And a United Nations agency official has cautioned Kenya against attempting to challenge the admissibility of the two cases and the jurisdiction of the ICC if it has not started investigations against the post-election violence suspects.
The government, even though coalition partner ODM has expressed its reservations, has resolved to go before the Pre-Trial Chamber to seek to block ICC Prosecutor Luis Moreno-Ocampo from opening two cases against Deputy Prime Minister Uhuru Kenyatta, Eldoret North William Ruto, Tinderet MP Henry Kosgey and public service head Francis Muthaura.
Through Attorney-General Amos Wako, Kenya will submit that the ICC has no powers to listen to the cases that also involve former Police Commissioner Hussein Ali and radio presenter Joshua arap Sang.
The Rome Statute, which established the ICC, has provisions that allow both the Ocampo Six and Kenya to go before the Pre-Trial Chamber judges to argue that the two cases should not be allowed to proceed.
In Article 19 (4), the Rome Statute lays the process of challenging the admissibility of the case or jurisdiction of the ICC.
“The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State. The challenge shall take place prior to or at the commencement of the trial.
“In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a later time,” it states.
The judges, in their Tuesday ruling, issued summonses to the Ocampo Six and required them to go — in person — to The Hague on April 7 for the initial appearance.
The hearing date will be fixed later. Once the hearing starts, Mr Wako will apply to block the proceedings on grounds of admissibility and lack of jurisdiction.
Said Justice minister Mutula Kilonzo: “We will follow the due process to challenge the jurisdiction of the court and the admissibility of the case. This is an opportunity which can only be utilised once.”
To successfully argue the case, Kenya will be required to prove that the Ocampo Six and other perpetrators of the violence are either being investigated or prosecuted over the crimes.
The AG can also argue that Kenya has already investigated the case and decided against prosecuting the concerned people.
But if the decision was based on the unwillingness or inability of the government to prosecute, the court will rule against the challenge.
Kenya may also claim that since a new Constitution was passed, it is in the process of putting in place institutions that will ably investigate and prosecute the Ocampo Six.
