Uhuru, Muthaura lose bid for oral submissions

By WAHOME THUKU
Deputy Prime Minister Uhuru Kenyatta and former head of public service Francis Muthaura have lost a crucial application to make oral submissions in an appeal pending before the International Criminal Court.

The Appeal Chamber of the ICC declined to convene an oral hearing session ruling that the written submissions filed in court were sufficient to determine the appeal.

Uhuru and Muthaura are challenging the jurisdiction of the ICC to try them for crimes that arose from the 2008 post-election violence.

The Pre-Trial Chamber confirmed crimes against humanity charges against the two on January 23, this year sending them to full trial.

It also confirmed charges against Eldoret North MP William Ruto and radio presenter Joshua Arap Sang. The chamber held that the cases met the threshold to be heard by the ICC.

Uhuru and Muthaura filed appeals on January 30, challenging the decision that the jurisdictional requirements had been met. On April 25, they filed their request to make oral submissions in the appeal.

They argued that an oral hearing would guarantee them public proceedings given the intense public interest in the case in Kenya and the international community.

They cited the Kenyan constitution and the Criminal procedure code which safeguards the right to a public hearing.
“The Appeal Chamber is obliged under the Rome Statute to apply the national laws of States which would normally exercise jurisdiction over the crimes,” their lawyers submitted.

Further they argued that oral hearing would not delay the case but would complement the chambers ongoing deliberations and assist it in any issues that would need further clarification.

Written submissions
They also contended that oral hearing would be the most effective way of scrutinising the merits of their written submissions already filed before the chamber.

Rule 156(3) of the Rules of Procedure and Evidence under the Rome Statute provides that the appeal proceedings shall be in writing unless the Appeals Chamber decides to convene a hearing.

Presiding judge Akua Kuenyehia said the chamber was not persuaded that oral hearing was necessary in this case.
She said the court was obliged to apply first the Rome Stature and its Rules of evidence, then treaties, principles and rules of international law and only if those failed would it result to general principles of law of respective States.
“The Appeals Chamber is not obliged to apply Kenyan law and finds no reason in the present case to deviate from the norm,” the Ghanian judge ruled.

She observed that the written submissions made by Uhuru and Muthaura were already public hence the publicity of the proceedings was already guaranteed.

She said convening an oral hearing at this juncture would not only be unnecessary but would unduly affect the expeditious resolution of the appeal.

“The submissions on the jurisdiction are already voluminous and detailed,” she added, “Therefore in the Appeal Chamber’s view, further oral submissions are not required,”

This means the next time that the proceedings will be on live TV would be in the trial itself. The court has already decided that both the trial and the appeal proceed concurrently. The Appeals Chamber comprises of five judges who all sit in determining appeals brought before them.