Victims of Kenya’s post-election violence want the government denied the right of reply to their submissions on its application challenging the admissibility of the cases before the International Criminal Court.
In an application filed at The Hague by their counsel Christopher Gosnell, the victims say that the request is premature and improperly seeks authorisation to exceed the proper scope of a reply.
“No “right” to file a reply is recognised before the International Criminal Court, contrary to the Applicant’s submissions. Other international tribunals also treat replies as a matter of discretion, rather than right. The Applicant is therefore incorrect to suggest that a reply is an inherent aspect of procedural fairness,” the application by the victims reads.
The victims also say that the application appears to be laying the groundwork for remedying “the vagueness of the Article 19 application, which seems to have been carefully crafted to offer only the bare minimum of information about the state of ongoing investigations.”
The Kenyan government is using Article 19 to challenge the admissibility of the cases at The Hague and the jurisdiction of the ICC on Kenya’s post-election violence.
The government through its British lawyers – Sir Geoffrey Nice QC and Rodney Dixon – has told the Pre-Trial Chamber II that a fair outcome cannot be achieved in its case if it is denied the right to reply.
It also wants to be allowed to put before the Chamber all relevant submissions and information in response to the submissions by the Prosecutor, the Defence and the victims.
But the victims argue that allowing the government to reply does not always enhance the fairness of the proceedings. They also argue that the opposite can be the case adding that “recourse to a reply in respect of such arguments or information is only a waste of judicial time.”
They also tell the Chamber that the request by the Kenyan government is “unusual, if not unprecedented” as it is seeking leave to reply yet no responses having been filed on its original application.
“No good cause can be shown until those responses have been received, when the Applicant can describe with more particularity the purpose of a proposed reply. Only then can the Chamber properly assess whether a reply enhances or diminishes the fairness of proceedings,” the application reads.
The government says that it is seeking an opportunity to demonstrate to the ICC that it can handle the post-election violence cases. It is committing itself in a timetable in the application to give progress reports on investigations and prosecutions with a deadline of September 2011.
The Kenyan application says that during the period preceding September, the government will have made the necessary changes in the Judiciary and the Police.
The government says that with the changes the two cases against William Ruto, Henry Kosgey and Joshua Sang and Uhuru Kenyatta, Francis Muthaura and Huseein Ali should not be handled by The Hague.
The Pre-Trial Chamber has asked the Prosecutor, the Defence Teams and the Victims to file submissions on the Kenyan government application by Thursday next week.