The International Criminal Court prosecutor Luis Moreno-Ocampo appeared to have been sent back to the drawing board after the Pre-Trial Chamber judges rejected his request to appeal against their ruling.
In a ruling made on Friday by Judge Ekaterina Trendafilova, the chamber said that it stood by its earlier decision to reject charges that the police were responsible for crimes in Naivasha, Nakuru, Kibera and Kisumu.
The judge accuses Mr Moreno-Ocampo of misinterpreting their ruling, terming his arguments in support of his application for an appeal as “erroneous”.
She ruled that the arguments arise from “a misconception of the provisions of the Statute as well as from an erroneous interpretation of the judicial determinations made by the Chamber”.
“The Single Judge recalls that, under the Statute, a person cannot be charged with establishing, participating in or contributing to a policy but can only be charged with the crimes committed in the context of a widespread and systematic attack against the civilian population carried out pursuant to or in furtherance of a State or organisational policy,” said judge Trendafilova.
Mr Moreno-Ocampo had requested leave in order to appeal against the decision, arguing that it weakens his case against head of Public Service Francis Muthaura and postmaster-general Hussein Ali, then Police Commissioner, and to some extent Deputy Prime Minister Uhuru Kenyatta.
The appeal, filed before the court on March 14, also asked for the chamber to make a resolution on whether forced circumcision amounts to a sexual offence.
The prosecutor said that the issues raised affect the fair and expeditious conduct of the proceedings and are also likely to affect the outcome of the trial.
On March 21, Mr Ali’s defence filed their response to the prosecutor’s request, asking the chamber to reject it in its entirety.
On Friday, judge Trendafilova said the prosecutor has not given whether State actors may contribute to and thereby participate in an ‘organisational policy’ that is not an official ‘State policy’.
“The Single Judge notes with concern that the prosecutor has not presented a clear line of argument in support of the issue, and has, in several respects, misinterpreted the decision,” said Ms Trendafilova.