On May 30, 2011, Pre-Trial Chamber II of the International Criminal Court (ICC) rejected the Kenyan Government’s admissibility challenges regarding the O’Campo Six: The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang and The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali. (See here)
The standard the court set required that the “‘national investigation must [. . .] cover the same conduct in respect of persons at the same level in the hierarchy being investigated by the ICC’”. Against this standard, Pre-Trial Chamber II determined that the applications do not provide concrete evidence of ongoing proceedings before national judges, against the same persons suspected of committing crimes falling under the ICC’s jurisdiction. While information was provided to establish that instructions were given to investigate, nothing in the record establishes any “current investigative steps” that have been taken. Pre-Trial Chamber II also considered that the Government of Kenya failed to provide the Chamber with any information as to the conduct, crimes or the incidents for which the suspects are being investigated or questioned. The Chamber concluded that “there remains a situation of inactivity and, consequently, that it cannot but determine that the case is admissible”.
The Government of Kenya may, within five days, file an appeal against these decisions, in accordance with article 82 (1)(a) of the Rome Statute and rule 154.1 of the Rules and Procedure and Evidence. It has already expressed its intention to do so.