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How mayhem landed Kenyans at the ICC

By WAHOME THUKU | October 9th 2014

NAIROBI, KENYA: A spate of mass killings and destruction of property following the disputed 2007 presidential election is what landed Kenya at the International Criminal Court (ICC).

And Wednesday, President Uhuru Kenyatta appeared before ICC judges for a status conference of the case in which he, alongside his deputy William Ruto and radio journalist Joshua arap Sang, is facing crimes against humanity charges.

The case was referred to the ICC by the Kenya Government after Parliament rejected a suggestion to set up a local tribunal to try persons implicated in the post-election violence.

On November 26, 2009, former ICC Prosecutor Moreno Ocampo filed an application before the court to be allowed to start investigating the Kenya situation.

He had just received an envelope containing names of possible suspects, prepared by a commission of inquiry into the violence that was chaired by appellate judge Philip Waki.

Mr Ocampo’s application was granted by a Pre-Trial Chamber on March 31, 2010.

Ocampo identified six individuals whom he accused of holding the highest responsibility for the chaos.

Apart from the three currently battling the charges in The Hague, the others indicted for the chaos included former Police Commissioner Hussein Ali, former Head of Public Service Francis Muthaura and former Tinderet MP Henry Kosgey.

On December 15, 2010, Ocampo applied to have them summoned to appear before the Chamber.


That application was granted on March 8, 2011, after the Pre-Trial Chamber decided there were reasonable grounds to believe they were criminally liable for crimes against humanity.

Uhuru and the other two suspects appeared voluntarily in court on April 8 of the same year.

The pre-trial was held from September 21 to October 5, 2011. Uhuru was accused of being criminally responsible as an indirect co-perpetrator for murder, deportation or forcible transfer of persons, rape, persecution and other inhumane acts.

The charges against Uhuru and Muthaura were confirmed on January 23, 2012, by a majority of the judges, with one judge dissenting.

Soon afterwards, Uhuru resigned as Finance minister, but retained his position as Deputy Prime Minister.

With the General Election then set for the end of 2012 looming and Uhuru touted as a contender, debate raged whether or not he should be in the presidential race.

A constitutional petition filed at the High Court with the potential of blocking Uhuru from being cleared to contest the seat was dismissed.

The case had been filed by three NGOs that argued he could not be allowed to run for the top job as that would have been a violation of Chapter Six of the Constitution.

The first status conference to set the trial date was held in February last year, just before the March General Election.

Both Uhuru and his running mate William Ruto attended the conference via video link from Nairobi.

At that point, the debate was still raging whether the two could be tried if they won the election and how they would manage the Government if they were to be held at the ICC when the trials commenced.

At a presidential debate in February last year, Uhuru stated that the case was "a personal challenge" that would not affect his work as Head of State.

The first date for start of the trial was April 11, 2013. However, on March 7 last year, the Trial Chamber postponed the trial to July 9, 2013. This followed an application by the defence team, who had argued that they had not been provided with all the necessary material by the prosecution.

On March 11 of the same year, the prosecution filed a notice to withdraw charges against Muthaura, leaving Uhuru to stand trial alone in the second case. On May 21, the president of the ICC split the Trial Chamber, allocating Uhuru’s case to Chamber V(b).

On June 20, 2013, the Chamber postponed the opening of the trial once again to November 12. This followed submissions by the defence that they needed more time to prepare for the trial.

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