Kenya has just one chance to challenge ICC
By Standard Team
The Government has only one chance to challenge admissibility of the case against the six post-election violence suspects at the International Criminal Court (ICC).
This reality dawned on the Government yesterday through a letter by the United Nations Commissioner for Human Rights while responding to a request made by Justice Minister Mutula Kilonzo early this month.
The minister had requested the commissioner to prepare a short note for the Government on challenges to admissibility under Article 19 of the ICC Statute.
A senior legal policy advisor to the High Commissioner, Chile Eboe-Osuji, reminded the Government in his letter dated March 9 – the day the Government announced it would challenge the admissibility of the case – that the right to challenge may be exercised only once and at any time up to and including at the commencement of the trial.
"Outside of this exercise of the indicated right, leave of court is required to bring challenge more than once or to bring it after the commencement of the trial," said Osuji.
In addition to the question of timing, Osuji noted that Article 19(5) provides that the State with sovereign jurisdiction "shall make a challenge at the highest opportunity".
He told Mutula that the Court shall determine that a case is inadmissible where the case is being investigated or prosecuted by a State, which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigations or prosecution.
He said for Kenya to challenge admissibility, the bottom-line is that it must clearly demonstrate that they are genuinely investigating or prosecuting the case in question.
"The need for this clarity is particularly accentuated by the one-shot option that is available as a right to challenge admissibility," he said.
Osuji warned that it would not be wise to squander that option with a challenge that would not be strongly based on concrete and bona fide steps capable of convincing the reasonable person that the State is indeed, as palpably evident in those concert steps, investigating or prosecuting or has investigated or prosecuted in good faith.
Kenya is yet to set up a local tribunal to try post-election violence suspects.
It could be recalled that MPs thrice blocked moves to set a tribunal to try the suspects, preferring The Hague process.
It was at this point that the matter was referred to the ICC, which also gave the country time to set up a local mechanism.
The court only took up the cases after the Government failed in its attempt to form a special tribunal.
And yesterday, ICC’s Pre-Trial Division Senior Legal Advisor Gilbert Bitti told the ICC Kenya TV Series Ask the Court that the country’s challenge of admissibility must be based on actual and genuine national proceedings against the same persons accused on the same cases.
"You cannot challenge on the basis of future proceedings or future courts," said Bitti.
It has also emerged that the move by the Government to challenge the jurisdiction of the ICC or the admissibility of a case pursuant to Article 19 of the Rome Statute was political.
Highly placed sources said advisers told the Government the move is likely to be rejected on grounds that there is nothing happening locally to warrant the Prosecutor to suspend his investigation.
Instead of heeding the advice, the Government is said to have said they would do so because it is a political action that may help the suspects.
"We advised them that the Prosecutor will object the move on grounds there are no ongoing investigations on the cases and any mechanisms to prove victims will get justice, but they did not listen," said an informed official.
"Instead, they said the announcement was political and that it is not a must the Government will challenge the issue next week, May or June. That may happen later," the source said.
The "political move" was also meant to address the pressure being put on some of the suspects to resign from their positions in public service, our source said.
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