Duo moves to High Court to block receipt of ICC summonses

By Evelyn Kwamboka Enforcing summonses by the International Criminal Court (ICC) against six suspects may hit a snag.
This could happen if the High Court in Nairobi issues orders barring Attorney General Amos Wako or any Government official from receiving the summonses from ICC officials.
Businessmen Jackson Mwangi and James Kuria filed a constitutional application seeking orders to bar the AG and his agents from cooperating with ICC pending hearing and determination of their case.
The two are also seeking to establish inconsistencies and contradictions between the Rome Statute creating the ICC and the Constitution, which bars the country from cooperating with an institution undermining the document promulgated on August 27 last year.
The application comes few days after ICC issued summonses requiring the Ocampo Six to appear before the court on April 7.
The six are William Ruto, Henry Kosgey, Joshua Sang, Francis Muthaura, Uhuru Kenyatta and Mohammed Hussein Ali. The summonses have to first land at the Foreign Affairs Minister’s desk then forwarded to the Internal Security ministry.
Prof George Saitoti, who is currently handling both ministries, should then pass them to the AG.
In the approval process, Saitoti is expected to check if the names in the summonses match those of the six suspects.
He is also to check if the six documents from the international court relate to persons being investigated by ICC. Then, the AG is expected to issue instructions to the police to serve the six personally.
The six would be expected to sign that they have received the summonses, and the signed document returned to ICC to prove they were served.
It has since emerged one of the judges does not regard the crimes committed as fitting the bill for which Court was created.
Some of the suspects are exploring an option of using Judge Hans-Peter Kaul’s dissenting opinion to oppose the charges. Judge Kaul questioned if the crimes alleged amount to crimes against humanity under the jurisdictional ambit of the Court.
The judge held that the prosecutor has failed in both cases to establish reasonable grounds to believe that the crimes were committed pursuant to or in furtherance of the policy of an organisation within the meaning of the Rome Statute.
The judge believes that the court lacks subject-matter jurisdiction in the situation in Kenya.