Kenya’s quest for evidence held by the International Criminal Court against the Ocampo Six has moved to the Appeals Chamber at The Hague.
Last week, Pre-Trial Chamber II judges rejected the government’s request for the evidence in the hands of the judges and prosecutor Luis Moreno-Ocampo. On Monday, Kenya turned to the Appeals Chamber to grant its request.
The appeal was made on the same day the Criminal Investigations Department said it was having difficulties in tracing potential witnesses.
In the appeal, the government faults the decision by the Pre-Trial Chamber judges to reject the request and, in particular, for not considering the updated information submitted by Kenya.
“The Chamber chose to ignore this evidence and to rely on a highly technical reason to reject our cooperation request – that the materials were not appended.
“The materials were expressly referred to in the cooperation request, and the materials were before the Chamber,” the government argues.
The government says the procedural errors by the Pre-Trial judges affect the fair and expeditious conduct of the proceedings as they have denied Kenya an opportunity to reply to the arguments relied on to reject the request.
Rejecting the application, the Pre-Trial Chamber said Kenya submitted a two-page cooperation request which did not have documentary proof that there is or has been an investigation against the Ocampo Six.
The government had sought ICC assistance in the form of statements, documents or other types of evidence obtained in the course of the ICC investigations into the violence.
The government said this would assist in conducting and advancing its own investigations and prosecutions, including those involving the ICC suspects.
The judges said Kenya must have, at least, either conducted an investigation or be doing so with respect to conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under Kenyan law.
They, however, said Kenya failed to offer proof that there were any ongoing investigations or prosecutions related to the crimes that the Ocampo Six are facing at The Hague.
The Kenyan government has been trying to access evidence held by Mr Moreno-Ocampo in its quest to kick off investigations against the Ocampo Six as a way of justifying its challenge on the admissibility of the cases at the ICC.
The six Kenyans facing cases at the ICC are Eldoret North MP William Ruto, radio presenter Joshua Sang, Tinderet MP Henry Kosgey, Deputy Prime Minister Uhuru Kenyatta, head of civil service Francis Muthaura and postmaster-general Hussein Ali.