International Justice Monitor

A project of the Open Society Justice Initiative

Admissibility appeal: Defense team to submit its observations

The Kenyan government’s efforts to halt the legal proceedings by the International Criminal Court (ICC) against six prominent and powerful citizens are still continuing. The legal focus is now on the government’s appeal against the ICC pre-trial chamber’s rejection on May 30 of its initial call for the proceedings to be halted.

That appeal is still going through its preliminary stages. The latest step has been the Appeals Chamber at the ICC setting this Tuesday as the deadline for the lawyers of three of the suspects in case two to submit their observations on the government’s appeal.

The Appeals Chamber had first asked the lawyers of the three – Deputy Prime Minister Uhuru Muigai Kenyatta, Secretary to the Cabinet Francis Kirimi Muthaura, and former police chief Mohammed Hussein Ali – for their observations on June 13, 2011. However, it seems that because the government took almost a month to file all the documents to support its appeal, then the observations of other parties were held up.

In one of the documents, an update report of Kenya’s Criminal Investigations Department dated July 1, 2011, the police claimed they have not found any witnesses that can connect the three suspects with the violence that threatened to tear Kenya apart between December 2007 and February 2008. The report, however, does say police will interview the three sometime in July.

It can be assumed lawyers for Kenyatta, Muthaura, and Ali will, in their observations on the government’s appeal, take the same position they did when Kenya first challenged the ICC’s proceedings against them, or in ICC jargon, the admissibility of the case against their clients. At the time they did not make any observations about the government’s admissibility challenge, only reserving the right to initiate their own admissibility challenge later. The lawyers for Kenyatta and Muthaura made joint observations.

The government wants that process stopped, citing the need to give Kenya time to fully investigate cases against Kenyatta, Muthaura, Ali, and the other three suspects before the court – former Higher Education Minister William Samoei Ruto, former Industrialization Minister Henry Kiprono Kosgey, and prominent journalist Joshua arap Sang.

Kenya filed the appeal on June 6, 2011 and filed supporting documents subsequently, including the investigation update report filed on July 4. The Appeals Chambers then asked the prosecutor to make any observations, which he submitted on July 12.

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