Wako finally appeals against ICC ruling

By Evelyn Kwamboka

Attorney General Amos Wako has finally lodged an appeal aimed at overturning the ICC Pre-Trial Chamber II’s decision, that declared cases against the six Kenyan post-poll violence suspects admissible.

In the alternative, the government wants the appeals chamber return the matter to the existing - or a reconstituted - Pre-Trial Chamber to hear and assess evidence on issues of complementarity together with arguments from all parties.

It is the government’s case that Pre-Trial Chamber judges Ekaterina Trendafilova, Hans-Peter Kaul and Cunno Tarfusser erred in questioning the determination of Kenya to investigate the six suspects purely on the basis of the its legal submissions.

"In the simplest terms the Pre-Trial Chamber seeks to put the cart of its conclusion before the horse of logic for no good reason," the government said through its advocate, Sir Geoffery Nice.

The government’s advocates- Nice and Rodney Dixon- lodged the appeal at the ICC’s registry at The Hague, moments before the deadline set by Pre-Trial Chamber II judges lapsed.

The document was filed to the appeals chamber comprised of five judges-Justice Daniel David Ntanda Nsereko, Akua Kuenyehia, Sang-Hyung Song, Erkki Korurula and Anita Usacka.

Sir Nice said the six suspects have not been excluded from investigations being carried out locally and having been refused access to the prosecution’s evidence, the government sought assistance from the Chamber but has, thus far, not been accorded any assistance to date.

"The Government of Kenya submits further that the Chamber has erred in its findings that suggest that the Government of Kenya has not been anything other than straightforward and open with the Chamber about its intentions and the nature of its investigation including into the six Suspects," he stated.

Sir Nice pointed out that the government would be expected to investigate those against whom it may have no evidence.

He said this is especially when the Prosecutor, Mr Luis Moreno-Ocampo has declined to make his evidence available to the government.

It is the government’s case that the three-judge bench erred in finding that at the time of the Attorney General Amos Wako’s letter of April 14 2011 to the Commissioner of Police Mathew Iteere, no investigation into the six suspects was underway.

The report of the Director of Criminal Investigation Ndegwa Muhoro of May 5 2011 makes plain that all six suspects were specifically investigated after being named by Moreno-Ocampo.

Last week, the court ruled that the AG instructed the CID director to commence investigations two weeks after Kenya filed its admissibility challenge.

Judge Trendafilova and her team found that Kenya’s request to have the cases referred locally did not provide "concrete evidence of ongoing proceedings before national judges" against the six suspects.

The judge said the chamber, lacked information about the dates when investigations commenced and whether the suspects were questioned.

The suspects are Finance Minister Uhuru Kenyatta, Cabinet Secretary Francis Muthaura, Postal Corporation chief Hussein Ali, suspended government ministers William Ruto and Henry Kosgey, and radio journalist Joshua Arap Sang.