Kenya wants oral hearing before ICC

The Kenya Government is now seeking to be heard orally before the International Criminal Court makes a decision on its admissibility challenge case.

Kenya argues that written pleadings provide a necessary foundation for the consideration of these legal issues, but must be expanded upon in oral argument.

Kenya has also told the ICC judges that Prosecutor Luis Moreno-Ocampo should not be permitted to make “generalised and unsupported allegations (sourced only with newspaper clippings and internet blogs)” without such assertions being tested forensically before the court.

Through it British lawyers, Sir Geoffrey Nice and Rodney Dixon, Kenya argues that the strengths and weaknesses of legal arguments are revealed and best judged through oral argument. It has requested that the oral hearing take place in the period of time before the confirmation hearing is presently scheduled so that it does not serve to delay these proceedings.

“The Government reiterates its request to have the opportunity to explain its position in an oral hearing on such important matters of national and sovereign interest. This decision should be rendered as a separate decision before the final decision is delivered on the Admissibility Application itself,” the application reads.

Kenya adds that the Pre- Trial Chamber grant an oral hearing to consider the admissibility application and to hear the Government’s representations by its Counsel and officials in person and in public.

It adds that is through the exchange of oral argument, taking into account the questions of the Chamber, that the legal issues can be thoroughly explored.

An oral hearing would permit close examination of the Prosecutor’s concept of “positive complementarity” and the ways in which it should be applied in practice to States like Kenya and other States in a consistent and universal manner.

The application adds that the Chamber can hear from the head of the Witness Protection Agency, Ms Alice Ondieki, in an oral hearing to question her directly on matters related to the issue. It adds that Police Commissioner Mathew Iteere is ready to tell the Court in person about the ongoing investigations.

The government also says that although this is the first case in which a State Party has made an admissibility challenge relying on the principle of complementarity, in all other cases in which admissibility has been raised by the accused, oral hearings have been permitted when requested.

In the same application, the government protests that the Prosecutor has denied it access to the evidence that he is holding arguing that this may hamper the national investigation and deprive it of potentially useful evidence to which the government has no access.