Appeals Chamber dismisses Kenya appeal to have ICC cases stopped

The Appeals Chamber at the International Criminal Court (ICC)  has decided to uphold a lower chamber’s decision to dismiss the Kenyan government’s application to stop two cases against six prominent Kenyans.

In a majority decision, the Appeals Chamber concluded that Pre-Trial Chamber II had not erred in law, procedure, or fact in determining Kenya had no case. Kenya had sought to stop the ICC case against its prominent citizens on the grounds that the country was already investigating them.

The six citizens are: Deputy Prime Minister and Finance Minister Uhuru Kenyatta, Head of Public Service and Secretary to the Cabinet Francis Kirimi Muthaura, former Higher Education Minister William Samoei Ruto, former Industrialisation Minister Henry Kiprono Kosgey, former police chief Mohammed Hussein Ali, and prominent journalist Joshua arap Sang. ICC Prosecutor Luis Moreno-Ocampo has drawn up several counts of crimes against humanity against them, which will be the subject of confirmation of charges hearings beginning this Thursday.

Judge Daniel David Ntanda Nsereko, who read out a summary of the judgement, explained the majority of judges concluded that for the ICC to stop the cases, a national investigation must be ongoing and must cover the same individuals and substantially the same conduct as alleged in the proceedings before the court.

Judge Nsereko said that there was a dissenting decision by Judge Anita Usacka. Judge Usacka found that the pre-trial chamber erred in the way it conducted proceedings and did not take full account of the rights of the appellant, said Judge Nsereko. The dissenting judge also found that the pre-trial chamber did not allow for enough consideration of issues at the core of an admissibility challenge, such as what constitutes an investigation, so she concluded that the pre-trial chamber’s decision should be reversed, Judge Nsereko elaborated.

The Appeals Chamber’s decision means that the confirmation of charges hearings set for Thursday, September 1, will go on as scheduled.


  1. I’m happy that ICC is providing a justice process that we can trust. In Kenya, our justice system is too compromised. We do not have a snowball’s chance in hell of finding justice in Kenya for those murdered and raped and dehumanised in the post election violence.


  2. For success of this important court, a lot of resources need to be sent to the Office of the Prosecutor (OTP). Skilled investigators must be deployed at the ground to collect evidence that can sustain a conviction. The quality of arguments and evidence so far tendered by the OTP (in the Kenyan cases) only suggests scanty investigations. It would be a travesty should perpetrators of crimes against humanity walk scot free on account of shoddy investigations and weak prosecution. Justice should not be denied to these victims based on ICC’s own procedural deficiencies.


  3. To Patel and D’Souza (two good names in Kenyan history): it is remarkable that the ONLY participant so far to outline the suffering of ordinary Kenyans, of the wananchi thus, in a moving and compelling way, was an Indian Kenyan, namely Ms. Sureta Chana. Trendafilova made an excellent choice in appointing her the victims’ representative.


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