Tuesday, April 5, 2011



Attorney General Amos Wako. The International Criminal Court Pre-Trial Chamber has denied government a chance to make submission over the application challenging the cases against the Ocampo Six  April 5, 2011. FILE

Attorney General Amos Wako. The International Criminal Court Pre-Trial Chamber has denied government a chance to make submission over the application challenging the cases against the Ocampo Six April 5, 2011. FILE

By OLIVER MATHENGE omathenge@ke.nationmedia.com

Posted Tuesday, April 5 2011 at 15:38

The Kenyan Government will not brief the Pre-Trial Chamber on its application to challenge the admissibility of the post-election violence cases during the appearance of the Ocampo Six at The Hague.


In a ruling on Monday, the ICC judges also rejected a request by Kenya that the Chamber convenes a status conference involving all parties to discuss the Kenyan application. Instead, the ICC judges have requested the Prosecutor, the Defence and Victims to make written submissions on the Kenyan government application before April 28 at 4pm.

“In response, the Chamber, being keen to expedite the proceedings and avoid any unnecessary delay, deems it sufficient to confine the engagement of the parties in the article 19 proceedings to providing written observations as dictated by rules 58(3) and 59(3) of the Rules. Accordingly, the Chamber considers that the Government’s Second Request should be rejected,” the judges said.

The judges in their ruling said that they had examined the three requests put forth by the Kenyan Government and considers that in order to be in a position to rule on the inadmissibility of the case, it must initially address the matters relating to the organisation of the proceedings.

Further the judges said that as indicated in a previous ruling against the participation on victims on Thursday and Friday, the initial appearance hearing “has a limited purpose and scope”.

“Moreover, the fact that the Government of Kenya is a party to the article 19 proceedings does not mean per se that it is a party to the criminal proceedings against the suspects, which would allow its participation during the initial appearance hearing,” said the judges.

The Pre-Trial Chamber also made a decision that the Office of Public Counsel for Victims shall represent those victims who make submissions when proceedings on the Kenyan government application are conducted.

They added that in order to ensure the “proper and expeditious conduct” of the admissibility proceedings and because no victim has been recognised yet in the present case, the OPCV should represent those who have submitted applications to participate in the proceedings of the Ocampo Six.

Despite having dissented to the issuance of summonses against the Ocampo Six judge Hans-Peter Kaul appended a declaration that he concurs with the latest decision. He however said that his concurrence was “limited to the purposes of the present decision and is without prejudice” to his dissenting opinion where he said that the ICC lacks jurisdiction in the Kenyan case.

In an application filed on its behalf by two British lawyers last week, the government says that it is seeking an opportunity to demonstrate to the ICC that it can handle the post-election violence cases and asked to be allocated time on Thursday and Friday.

“The Government requests that it be afforded a separate time allocation to have an opportunity to address briefly the Pre-Trial Chamber on one or both of the hearings’ days of 7/8 April 2011, as the Court may decide in circumstances where the parties can be present,” the application filed by Queen Counsels, Sir Geoffrey Nice and Mr Rodney Dixon reads.

The Kenyan government has committed itself to investigating and prosecuting post-election violence cases by September this year. This is contained in a timetable in the application to give progress reports on investigations and prosecutions with a deadline of September 2011.

The Kenyan Government has requested that the Chamber determines that the cases, against six of its citizens for whom summonses to appear have been issued, is inadmissible.

The six are Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura, post-master general Hussein Ali, radio presenter Joshua Sang and suspended ministers William Ruto and Henry Kosgey.

The Kenyan application made public yesterday says that during the period preceding September, the government will have made the necessary changes in the Judiciary and the Police. The application filed which was filed on Thursday under the authority of Attorney General Amos Wako anchors Kenya’s case on the new Constitution and ongoing reforms.

The application contains a time table that illustrates the government’s plan in dealing with the cases. It says that by the end of July 2011, the government will give a report on investigations under the new Director of Public Prosecutions and how they extend up to the highest levels.

“The structure of the new office and the manner in which investigations are being undertaken to ensure independence and efficiency will also be addressed,” the application says.

In August, the government will report on progress made with investigations to the highest levels, and on adoption of the three Police Bills and reorganisation of the police services, including the appointment of the new Inspector-General.

In September, the report will highlight the progress made with investigations and readiness for trials in light of judicial reforms.

The application says that by this time the necessary judicial reforms will have been implemented for the investigations to take their course in prosecutions before the courts.

  1. Submitted by hakika2
    Posted April 05, 2011 08:38 PM

    I hope the govt doesn't waste any more tax-payers' money on these fruitless missions. Let the whole process proceed and the 'innocent' will come out even more victorious than when they went in if proven so. There is a dissenting voice in the bench so there is a chance one or more of the O6 will be adjudged innocent, so I don't see why the govt is panicking up and down the place- unless somebody has something to hide!

  2. Submitted by wakam
    Posted April 05, 2011 08:36 PM

    Habarikenya, you said it like youi were in my mind.The two counts must be addressed.Some kenyans are experiencing the worst poverty while their money is being thrown into the forest by the likes of Kalonzo, it makes me sick.If the Ocampo six are serious that the local system can bring any justice then let them use it first to prove. Why are they going for foreign lawyers?

  3. Submitted by elvisayaga
    Posted April 05, 2011 08:35 PM

    It seems the govt is hiding something.Thanks to the Almighty Father for His directions. We believe that justice will prevail and truth will be disclosed at the right time.

  4. Submitted by georgemusindishiveka
    Posted April 05, 2011 08:32 PM

    Waki and Ocampo gave this government enough time to form a tribunal, whats the problem if they are tried at the Hague? MUTHAURA and ALi may implicate Kibaki and thats why people are running helter-skelter. Mtaona cha mtema kuni !!. Waende Hague na wasirudi.

  5. Submitted by oriba
    Posted April 05, 2011 08:00 PM

    Kenya has been caught again with it's pants down.

  6. Submitted by OusaOkello
    Posted April 05, 2011 07:59 PM

    I "brame" "raira"!

  7. Submitted by Kuziba
    Posted April 05, 2011 07:56 PM

    Why are they against Hague. Hague poa, Kuku kwa Uma mwanangu! Whereby Kamiti and Shimo Kunguni kibao!!

  8. Submitted by Frediste
    Posted April 05, 2011 07:34 PM

    Since is a developing country that still relies on foreign aid and the prosecution of the perpetrators PEV is very costly, we have also lost so much in Shuttle diplomacy, why dont we just allow ICC to save us the resources and time so that we can focus on the implementation of the new constitutioins!

  9. Submitted by kaibs07
    Posted April 05, 2011 07:15 PM

    This is just a detailed plan of how the govt plans to set free these guys.Justice is justice whether aquired in The HAGUE OR Kenya courts.Dont blame Raila and if you do then you knew that the local courts are toothless and would sway your way but The Hague can bite Face the gallows or go to Guatanamo bay.

  10. Submitted by Georgendede
    Posted April 05, 2011 06:47 PM

    We are in a different dispensation. None of us can stop the wheel of justice this time round. The side of the government pushing for deferral should simply let go. The game is almost over.

  11. Submitted by ryanchris189
    Posted April 05, 2011 06:45 PM

    What did you expect Mr Wako. This nternational lawyer might as well told you the truth that little you know, they six are in hot soup, let them feel the pain of proving themselves innocent. Again if I were you I will focus on the rest who are walking out here freely or later you will face the same fate as the six. The drug dealers in Kenya are walking freely.

  12. Submitted by habarikenya
    Posted April 05, 2011 06:12 PM

    It was clear from the beginning that this was a case involving individuals, yet the government took to defending them as if the government itself stood accused. Now the government has to answer to Kenyans on two counts: 1. what it fears or is trying to hide, and, 2. to refund the tax payers money used in all these fruitless bids. We pray for our sons.

  13. Submitted by kmmohan
    Posted April 05, 2011 06:11 PM

    Seems the ICC judges, including Justice Hans, have seen thru' the smoke-screen of the sudden enthusiasm by the govt in investigating the PEV cases.

  14. Submitted by Hotspear
    Posted April 05, 2011 06:10 PM

    Haleluhya!! God is with Kenyans and has answered our prayers. Kenyans let's continue praying. Justice is on the way and no body will stop it.

  15. Submitted by critque
    Posted April 05, 2011 05:47 PM

    This is excellent. i only hope that someone out there will not claim that RAO influenced the ruling by these jugdes.

  16. Submitted by jkilat5859
    Posted April 05, 2011 05:40 PM

    Putting in place a credible legal system to convince the ICC to defer the trial of the 6 named cannot help the current accused. The best the government could have done was to arrest the some of the named suspect that have involved in hate speech. Then they could forestall going to Hague because there is a current prosecution going on in Kenya.

  17. Submitted by otno
    Posted April 05, 2011 05:27 PM


  18. Submitted by jetfighterbad
    Posted April 05, 2011 05:26 PM

    Did the govt think that on hiring the so-called 'western experts' would do it any good? I knew nothing would be yielding...they are malicious, since being international jurists, queen's counsels and the names u give them, how didnt they see the technicality in the application? Instead of shouting all over, our leaders shd sit down and think properly.

  19. Submitted by mad_genius
    Posted April 05, 2011 05:16 PM

    It is simply unbelievable that our suspects have such power and clout in government. Everyone from the president down seems to dance and sing at their whim. What is their hold? What is their secret weapon?

  20. Submitted by Maina_JT
    Posted April 05, 2011 05:15 PM

    Time to send Kalonzo on a "tuongee kama wazee" meeting with the ICC judges :).

  21. Submitted by waguras
    Posted April 05, 2011 05:04 PM

    “Moreover, the fact that the Government of Kenya is a party to the article 19 proceedings does not mean per se that it is a party to the criminal proceedings against the suspects, which would allow its participation during the initial appearance hearing,” This part of the ruling is important because the Kibaki administration has wrongly been seeing herself as one of the accused. These six guys are not the government and must be allowed to carry their own cross.

  22. Submitted by Parachute
    Posted April 05, 2011 04:55 PM

    I think 06 have a chance if they face court directly. This inadmissibility venture should be called off. Wako please.

  23. Submitted by muftijammaa
    Posted April 05, 2011 04:44 PM

    serving the government with a 99 year difference!!

  24. Submitted by Nguka
    Posted April 05, 2011 04:42 PM

    This ICC strikes me as very fair. Those accussed have a real chance here. Ocampo-6. Please note this. You have a real chance here!

  25. Submitted by odegimk
    Posted April 05, 2011 04:42 PM

    I am happy that the ICC is thinking of both the accused and the victims.That is what we call true justice. No sacred cows, even when it is the Queen's lawyer representing you or even if you are the 'frontrunner' in your country's succession politics. Long live ICC judges.

  26. Submitted by raiamzalendo
    Posted April 05, 2011 04:40 PM

    It is now apparent that the government cannot win this case. Why can't it just let go? I'll be surprised if it does not hatch another scheme.

  27. Submitted by alexmujuni
    Posted April 05, 2011 04:39 PM

    If the governement is still to form a mechanism to try the perpetrators of PEV and it hasnt even done investigations four almost four years down the line, where will it get the evidence to prosecute the perpetrators and find justice for the victims. Let Ocampo do his job, whether he relies on the findings of Waki Commission or that of the Human Rights, at least these two did get evidence or whichever material when things were still fresh.

  28. Submitted by jfeo
    Posted April 05, 2011 04:35 PM

    The government is inadvertently dealing a blow to this case. Who will advise them to let the wheel of justice take its course?

  29. Submitted by critque
    Posted April 05, 2011 04:35 PM

    i told you guys as long as those widowed and opharns at the IDP camps crying to God day and knight for justice,all the Goverment shenanigans to avert justice on this ICC thing will never sea the light of the day.let those who have ears hear.

  30. Submitted by emanthi
    Posted April 05, 2011 04:35 PM

    More cash gone down the drain in enlisting Queen’s Counsel instead of helping IDPs and still caught 'pants down"

  31. Submitted by barmasaifelix
    Posted April 05, 2011 04:33 PM

    If me as a Kenyan do not trust my own police and government, how can the ICC do so? we are a lawless society where politicians are running riot on every front yet the law never gets to take its course.kudos to ICC

  32. Submitted by Maina_JT
    Posted April 05, 2011 04:28 PM

    It is clear that the ICC judges see little merit in the government challenge. From failed deferrals to legless inadmissibilities, why can't the government stop wasting taxpayers money, getting in the way of justice? If the Ocampo-6 are as innocent as they proclaim every weekend, why is the government working so hard to subvert their trial at ICC? WHY?

  33. Submitted by jalabisuti
    Posted April 05, 2011 04:24 PM

    The Hague works quite efficiently. If only Africans wheel of justice could move a little faster!

  34. Submitted by elabonga
    Posted April 05, 2011 04:22 PM

    Ati Queen's counsel! This is waste of public funds. Wacheni jamaa wajitetee.

  35. Submitted by isendili
    Posted April 05, 2011 04:21 PM

    In forecasting, this signals a challenge! The Govt must spare us this mess! let the process go on!

  36. Submitted by karanja33612
    Posted April 05, 2011 04:16 PM

    The so called "government" has had 3 years to resolve this very weighty issue but has failed miserably. What makes them think that they can have a credible judicial system in three months.