Youths brandish weapons at the height of the 2007/ 2008 post election violence in Naivasha. Kenya will have to gather its own evidence on the Ocampo Six to conduct a local trial after the International Criminal Court rejected its request for assistance June 30, 2011. FILE
By OLIVER MATHENGE omathenge@ke.nationmedia.com
Posted Thursday, June 30 2011 at 15:32
Posted Thursday, June 30 2011 at 15:32
Kenya will have to gather its own evidence on the Ocampo Six to conduct a local trial after the International Criminal Court rejected its request for assistance.
In the ruling, Pre-Trial Chamber II judges said they rejected the government’s request for assistance with evidence held by the court because Kenya submitted a two-page Cooperation Request, which lacked any documentary proof that there is or has been an investigation against the Ocampo Six.
In the Cooperation Request, the government sought the Court’s assistance in the form of receiving all statements, documents, or other types of evidence obtained by the Court and the Prosecutor in the course of the ICC investigations into the post-election violence
According to the government, this would assist the national authorities in conducting and advancing their investigations and prosecutions into the chaos, including those involving the suspects.
The judges said that in order to grant the request, Kenya must have, at least, either conducted an investigation, or be doing so with respect to conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the Kenyan law.
They, however, said that Kenya failed to offer proof that there were any ongoing investigations or prosecutions related to the crimes that the Ocampo Six are facing at The Hague.
The judges, in their ruling, started by indicating that article 93(10) of the Rome Statute makes clear that the Court is under no obligation to comply with a cooperation request submitted by a State.
They added that they rule on such requests after having properly scrutinised them together with any relevant material in support but noted that they cannot order the prosecutor to provide his evidence to a State.
“The Chamber cannot order the Prosecutor to provide any material or evidence in his “possession” to any State as this is a matter that falls entirely within his power. The Chamber can grant a request for cooperation and assistance only in relation to material or evidence in its actual “possession”,” the judges said.
The Kenyan Government has been trying to access evidence held by ICC Prosecutor Luis Moreno-Ocampo in its quest to kick off investigations against the Ocampo Six as a way of justifying its quest for a challenge on the admissibility of the cases at ICC.
The six Kenyans facing cases at the ICC are: Eldoret North MP William Ruto, radio presenter Joshua Sang, Tinderet MP Henry Kosgey, Deputy Prime Minister Uhuru Kenyatta, head of civil service Francis Muthaura and Postmaster General Hussein Ali.
They are due to travel to The Hague for confirmation of charges hearings in September.
A confirmation of charges hearing is held to determine if there is sufficient evidence to believe a suspect committed the crimes he is charged with.
If the charges are confirmed, the Pre-Trial Chamber commits the person to a Trial Chamber, which conducts the next phase of the proceedings – the trial.
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