Ocampo seeks appeal on ICC cases

International Criminal Court Prosecutor Luis Moreno-Ocampo has appealed a decision by the Pre-Trial Chamber II to reject part of his application saying that it weakens his case March 15, 2011. FILE 

By OLIVER MATHENGE, omathenge@ke.nationmedia.com
Posted Wednesday, March 16 2011 at 13:00

International Criminal Court Prosecutor Luis Moreno-Ocampo has moved to appeal a decision by the Pre-Trial Chamber II to reject part of his application saying that it weakens his case.

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The prosecutor has filed an application seeking leave to appeal the judges’ decision to reject charges that the police were responsible for crimes in Naivasha, Nakuru, Kibera and Kisumu. The appeal was filed before the court on Tuesday.

Mr Moreno-Ocampo argues that following the judges’ decision, the findings on whether crimes against humanity have been committed have been restricted to events in Naivasha and Nakuru, and further only to those acts that are linked to the crimes committed by the Mungiki.

In his application, Mr Moreno-Ocampo said that head of civil service Francis Muthaura and postmaster general Hussein Ali (who was then Police Commissioner), had instructed police to use excessive force and not to interfere with the Mungiki.

Deputy Prime Minister Uhuru Kenyatta was accused of organising meetings between the Mungiki and senior government and PNU officials including Mr Muthaura.

State Policy

However, the Pre-Trial Chamber rejected the application arguing that the police could only be held accountable for the crimes in Naivasha and Nakuru if they acted pursuant to a “State policy by abstention”.

It also rejected the contribution of the police to the crimes in Kisumu and Kibera, again on the ground that the prosecutor failed to prove that those crimes were committed pursuant to a “State policy”.

"In this manner, the findings on whether crimes against humanity have been committed have been restricted to events in Naivasha and Nakuru, and further only to those acts that are linked to the crimes committed by the Mungiki," the prosecutor says in his application.

Mr Moreno-Ocampo told the judges that this would weaken the case against the three individuals and he was therefore applying to appeal two issues, which the Prosecution considers, require consideration by the Appeals Chamber.

“One concerns the construction by the Pre-Trial Chamber of the organisational requirement that must be pleaded and proved to convict a person of crimes against humanity. The other concerns whether forcible circumcision of adult males cannot constitute an act of sexual violence and should be qualified as “other inhumane acts” instead,” Mr Moreno-Ocampo avers.

"Both issues require immediate appellate consideration. Because they bear on the criminal charges that the Suspects will be called upon to answer, they must be resolved now, else the Prosecution will be irremediably prevented from pursuing its factual and legal theory of the case."