Photos/FILE Judges Ekaterina Trendafilova (left), Cuno Tarfusser and Hans-Peter Kaul (right), in their ruling on May 30, 2011, noted that Kenya is short on measures already taken to punish impunity and long on promises of future action.
By BERNARD NAMUNANE bnamunane@ke.nationmedia.com
Posted Monday, May 30 2011 at 22:30
Posted Monday, May 30 2011 at 22:30
The government’s attempt to convince the International Criminal Court that it is serious about investigating and punishing election violence suspects failed on Monday.
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Efforts to have the cases pending at the ICC brought back home were thrown out, with the judges finding the government’s grounds for claiming to be serious about punishing crimes against humanity unconvincing.
Judges appeared puzzled by the government’s claims to be investigating the cases without providing any proof.
In one case, the government gave the court a letter from the Attorney-General ordering the Commissioner of Police to investigate persons to have masterminded the violence.
However, the letter was written after the government filed the case to have the Ocampo Six tried at home.
Judges, in their ruling, also noted that Kenya is short on measures already taken to punish impunity and long on promises of future action.
The ruling by Pre-Trial Chamber judges now leaves the government with one option— a higher bench chaired by ICC President Judge Song Sang-Hyun to decide the fate.
In the ruling sent to defence teams, Judges Ekaterina Trendafilova, Cuno Tarfusser and Hans-Peter Kaul declared:
“The Chamber hereby rejects government request, determines the case is admissible and orders the (ICC) to notify this decision to the Government of the Republic of Kenya.”
The government, through British lawyers Geoffrey Nice and Rodney Dixon, filed an application challenging the admissibility of the case at The Hague on grounds that it had commenced investigations into the Ocampo Six. (READ: ICC Judges receive Kenya's request to strike out cases)
To back their arguments, the two lawyers attached at least 24 annexes which included letters from Attorney General Amos Wako and Police Commissioner Matthew Iteere to the Criminal Investigations Department (CID) boss Ndegwa Muhoro to start investigations.
Of those 24 attachments, the court found only three were relevant to the government’s case.
The government had also prepared a list of the cases related to crimes stemming out of the 2008 post election violence which had been investigated and concluded, those that were pending and those that were concluded.
Also attached to the application were the promulgation of the new Constitution, and the number of Bills that had been enacted by Parliament to reform the Judiciary, the Kenya Police and the department of Prosecutions.
It stated: “An investigation into the six suspects is under way in a country that has undergone, and is continuing to undergo, reform of police and judicial procedures that have to be accorded respect not just for what they will provide in the future but for what they guarantee now for the due process that will be brought to the investigation and to any trial of any of the six suspects.”
ICC Prosecutor Luis Moreno-Ocampo dismissed the government, arguing that he took over the case because it had failed to try the key players in the violence.
On December 15, 2010, he named the individuals as deputy Prime Minister Uhuru Kenyatta, suspended minister William Ruto, Tinderet MP Henry Kosgey, Head of Civil Service Francis Muthaura, Postmaster General Hussein Ali and Kass FM radio presenter Joshua Sang.
They have since gone before the Pre-Trial Chamber for an initial appearance. Hearings for the confirmation of charges will begin on September 1 and September 21.
In their ruling on Monday, which saw Judge Hans-Peter Kaul append his signature to the ruling stating that the case was admissible even though he dissented when Mr Moreno-Ocampo sought to start investigations, they dismissed the arguments by Kenya’s attorneys and allowed the case to proceed to the confirmation stage.
“Although the information provided in these two annexes reveals that instructions were given to investigate the three suspects subject to the Court’s proceedings, the Government of Kenya does not provide the Chamber with any details about the asserted, current investigative steps undertaken,” they said.
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