The Kenyan government in a statement signed by the Attorney General, the Minister of Justice and Constitutional Affairs, and the Minister in Charge of Internal Security has announced plans to challenge the admissibility of the case against six Kenyans when they appear in the Hague on April 7th, 2011. See government statement here.
Notably, Pre-Trial Chamber II in issuing the summons on March 8, 2011 declined to rule on the admissibility of the two Kenyan cases as noted in a previous post.
Under article 17 (1) (a) and (b) of the Rome Statute, the question of unwillingness or inability has to be considered only (1) when there are, at the time of the proceedings in respect of an admissibility challenge, domestic investigations or prosecutions that could render the case inadmissible before the Court, or (2) when there have been such investigations and the State having jurisdiction has decided not to prosecute the person concerned.
Thus Kenya will have to show that it has not engaged in inaction but is instead investigating or prosecuting the six Kenyans. If Kenya cannot demonstrate it is investigating or prosecuting the six Kenyans, then the case is admissible before the ICC.
At the moment, there are no domestic proceedings in Kenya against the six with reference with regard to the various counts of crimes against humanity now pending at the ICC. Perhaps Kenya can argue that there are ongoing investigations but no public information exists at this time about this very unlikely possibility. Thus Kenya cannot at this point demonstrate that these important preconditions for a possible finding of inadmissibility under current ICC jurisprudence.
The Appeals Chamber in The Prosecutor v Germain Katanga and Mathieu Chui in a Judgment on Appeal Against the Oral Decision of Trial Chamber II of 12 June 2008 on Admissibility of the Case held that under “Article 17(1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability.” Para. 78
It seems to me that Kenya not having set up a domestic tribunal to investigate and prosecute the six Kenyans is only currently making a theoretical argument about its willingness and ability to investigate and prosecute. Such theoretical willingness and ability is likely to result in inaction and that is precisely why the two cases against the six Kenyans is admissible. The case that the government is in the process of reforming the judiciary and criminal justice system as required by the terms of the new Constitution is only tangentially connected to the investigation and prosecution of post-election violence offenders in general and to the six Kenyans against whom summonses have been issued against in particular. The facts as they exist now do not render the two cases inadmissible to the extent Kenya cannot show ongoing investigations or prosecutions against any of the six Kenyans that the Prosecutor has prevailed in procuring summonses.
The admissibility challenge is a new front in the government’s bid not to have the ICC proceed with the prosecutions of five current or former senior government officials: William Ruto currently suspended from the cabinet; Uhuru Kenyatta a Deputy Prime Minister; Francis Muthaura, who heads the Civil Service; Henry Kosgey currently suspended from the cabinet; Hussein Ali, the Post Master General and a former Commissioner of Police and radio broadcaster Joshua Arap Sang. See story here.
Five of the six suspects have announced their willingness to appear at the Hague on April 7th. Only Francis Muthaura has not yet publicly announced his intention to appear since the issuance of the summonses.
In the meantime, Vice President Kalonzo Musyoka has embarked on the second phase of the lobbying campaign to seek deferral of the ICC cases. This week he is meeting members of the United Nations Security Council in New York. Other members of the lobbying campaign announced last week by President Kibaki are headed to various capitals around the world to lobby the other members of the Security Council. See stories here and here .