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.