Kenya Announces It Will Challenge Admissibility: Chances of Success Extremely Poor

March 9, 2011

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 .


ICC Issues Summons For All Six Kenyan Suspects: Dissent Expected From Judge Kaul

March 9, 2011

In two rulings dated March 8, 2011, the Pre-Trial Chamber II has issued its ruling allowing issuance of Summonses to Appear for six Kenyans in two cases  sought by ICC Chief Prosecutor Moreno O’Campo.

Pursuant to these two rulings, these six Kenyans will now receive summonses from the Court pursuant to Article 58(7) of the Rome Statute.

See rulings here and here

Both decisions were decided by a majority of two of the three judges. Judge Kaul who dissented in the initial ruling granting the Prosecutor permission to commence an investigation is scheduled to ‘issue a dissenting opinion in due course.” Judges Ekaterina Trendafilova and Cuno Tarfusser wrote the two rulings. In both cases, the Chamber declined to rule on admissibility reserving that to a different phase of the proceedings.

The only issue that the Chamber confined itself to deciding is whether there were reasonable grounds to believe that one or more of the crimes

On admissibility, the Chamber noted with reference to the first case that the Prosecutor had presented information suggesting that were reasonable grounds to believe that Counts 1,2 and 4 of the Application had been committed in the first case against William Ruto, Henry Kosgei and Joshua Arap Sang.

In this case, the Prosecutor had alleged that the three person had committed the following offences:

  • Count 1: murder constituting a crime against humanity (Article 7(1)(a) and Article 25(3)(a) or (d) of the Statute);
  • Count 2: Deportation or forcible transfer of population constituting a crime against humanity (Article 7(1)(d) and Article 25(3)(a) or (d) of the Statute);
  • Count 3: Torture constituting a crime against humanity (Article 7(1)(f) and Article 25(3)(a) or (d) of the Statute; and
  • Count 4: Persecution as a crime against humanity (Article 7(1)(h) and Article 25(3)(a) or (d) of the Statute).

Quite notably, in this case the Chamber observed that it was “satisfied that there are reasonable grounds to believe that the attack against the civilian population was committed pursuant to an organizational policy” in various parts of the Rift Valley (Para 20) and that a network of perpetrators including the suspects ‘possessed the means to carry out a widespread or systematic attack against the civilian population” (Para 24). Ultimately the Chamber found that the “contextual elements for crimes against humanity alleged by the Prosecutor’s Application have been satisfied,” (Para. 29)

However, the Chamber was skeptical that the Prosecutor had presented sufficient material to establish reasonable grounds to believe that acts of torture as a crime against humanity were committed (Para. 33)

In addition, the Chamber found it had “no reasonable grounds to believe that Sang (the radio-broadcaster) is criminally responsible as a principle… with Ruto and Kosgey for…crimes against humanity.” (Para. 38). For Sang, the Chamber noted that it is satisfied on the material before it that “there are reasonable grounds to believe that his role is best characterized under Article 25(3)(d) of the Statute.” (indirect co-perpetrator) (Para 38 and Para. 53).

The Chamber noted that on the basis of the material presented, there were reasonable grounds to believe that William Ruto as ‘the most representative Kalenjin leader and head of the organization established –together with Kosgey was responsible for the overall plan and its implementation in the Rift Valley; and that the plan constituted creating perpetrators; purchasing guns and crude weapons; giving instructions to perpetrators to support implementation of the plan – including killing, displacement of people and destruction of property. (Para 42). The Chamber noted that on the information it had Kosgey was equally culpable and that he “was in charge of managing the financial resources of the organization for the purpose of implementing the common plan.” (Para 43).

In the second case involving Francis Muthaura, Uhuru Kenyatta and Mohammed Hussein Ali, the Chamber allowed summonses to issue against all three for all five counts for crimes against humanity as alleged by the Prosecutor (albeit with limitations as the localities where the crimes were allegedly committed).

The five counts in this case are:

  • Count 1: murder constituting a crime against humanity (Article 7(1)(a) and Article 25(3)(a) or (d) of the Statute);
  • Count 2: Deportation or forcible transfer of population constituting a crime against humanity (Article 7(1)(d) and Article 25(3)(a) or (d) of the Statute);
  • Count 3: Rape and other forms of sexual violence constituting a crime against humanity (Articles 7(1)(g) and 25(3)(a) or (d) of the Statute
  • Count 4: Other inhumane acts constituting a crime against humanity (Article 7(1)(k) and Article 25(3)(a) or (d) of the Statute; and
  • Count 5: Persecution as a crime against humanity (Article 7(1)(h) and Article 25(3)(a) or (d) of the Statute.

Notably, the Chamber found that on the basis of the material presented to it, the Mungiki criminal organization operated as ‘a large and complex hierarchical structure featuring various levels of command and a clear division of duties in the command structure…[with] a trained military wing” and that it qualified as an organization under Article 7(2)(a) of the Statute. (Para. 22). Kenyatta and Muthaura, were according to the Chamber on the basis of the material presented to it, in a common plan with Mungiki to commit the alleged crimes for the ‘purpose of keeping PNU [President Kibaki’s party] in power and in return Mungiki would be free from government repression and Mungiki interests would receive government protection. (Para 37). Further, the Chamber noted that the material presented to it showed both Kenyatta and Muthaura had control over Mungiki, that they financed Mungiki and that Mungiki members almost automatically complied with Kenyatta’s orders. (Paras 40-41). With regard to Ali, the Chamber noted that the material before it indicated he had acted on the instructions of Muthaura to order the Kenya Police not to respond to the crimes being committed by Mungiki. (Para 49).

Since the Prosecutor had not alleged that the absence of police intervention in the violence showed the existence of a State policy by abstention, the Chamber did not entertain the issue without prejudice to revisiting it in future based on further submissions. (Para. 24).

The Chamber did not agree with the Prosecutor that ‘other forms of sexual violence’ in Article 7(1)(g) of the Statute contemplates acts of forcible circumcision. (Para. 27).

With respect to both cases, the Court found that the issuance of arrest warrants is unnecessary since none of the persons against whom summonses were ordered to be issued were flight risks and there was nothing that currently indicated they would evade personal service of the summons or refrain from cooperating if summoned to appear.


This is an unprecedented victory for O’Campo for a number of reasons. First, with the exception of one count in case no. 1, the Chamber sustained all the other counts against all the six Kenyans. The only downside is that O’Campo has yet to convince Judge Kaul who dissented in the application to investigate and who is now expected to issue a dissent on the issuance of summonses. This is an important case as it represents the first time the Prosecutor has successfully made an application to investigate a situation and then successfully made an application for summonses.

Second, Kenya presents an unprecedented opportunity for the Court and the Prosecutor to demonstrate the scope of the ICC’s authority over a situation in a country not in turmoil unlike other situations like the Democratic Republic of Congo, Sudan or even northern Uganda. As O’Campo has argued, a major reason for taking this case up is to prevent recurrence of post-election violence in 2012 in Kenya and any time thereafter. As a result of the successful application to investigate the Kenyan situation, there is already an effort to have the Prosecutor investigate 90 killings of anti-government (red shirts) protestors in Thailand following the Kenyan precedent even though Thailand is a party to the Rome Statute.  On that see here and here

Third, the issuance of the summonses against the six Kenyans continues to fortify the case that Kenya has not shown the slightest indication of seriousness to try these six Kenyans, or any others for that matter, for the offences committed in early 2008. By ordering summonses be issued, the Chamber may have effectively shut the door to Kenya’s deferral bid – if there was ever any doubt that the deferral bid was meritless.

In First Real Test Constitution Prevails as Kibaki Reverses Unilateral Appointments: Implications for Kenya’s Deferral Bid

February 22, 2011

In what is the first real test of Kenya’s new Constitution, the President has backed down by withdrawing nominees appointed inconsistently with the Constitution to fill four significant public positions: Chief Justice, Attorney General, Deputy Public Prosecutor and Controller of the Budget. See story here and here.  

The Constitutional Implementation Commission, the Judicial Service Commission, the Speaker of the National Assembly and the High Court had already declared the nominations inconsistent with the requirements of the new Constitution. (See below for excerpts of the High Court ruling outlining the provisions of the Constitution at issue).

A suit filed by a women’s rights group challenging the constitutionality of the nominations for failing to give equal protection to women in the nominations as required  by Article 37(3) of the Constitution is still pending. See story on that case here  and here.  

Another suit filed in the Court of Appeal by the Constitutional Implementation Commission to give a definitive interpretation of the nominating and appointing process and requirements for Constitutional Office holders is also pending is unlikely to be withdrawn since the President insists he appointed the four officers within his powers. See story here

President Kibaki, who had initially declared that he will fight to the end to keep the nominees, withdrew the nominations arguing that it will enable Kenya to “move forward with the implementation process of the Constitution.”

This withdrawal of the nominations is the first indication that the President may very well be re-considering his strategy of outflanking the Prime Minister with respect to the new Constitution’s mandate to consult with the Prime Minister and to work with other organs in the implementation of the new Constitution. Second, the withdrawal of the nominations presents a new opening for Kenya to begin to show credibility in reforming the judiciary and possibly setting up a credible local tribunal to try post election offenders.

In a ruling on whether the list of nominees was admissible in the National Assembly, the Speaker ruled the list of nominees was inadmissible because it was unconstitutional.  Noted the speaker:

[H]aving paid due regard to the positions advanced by the High Court and other constitutional and statutory bodies, I find and rule that the constitutional requirements of section 24 (2) and 29 (2) of the Sixth Schedule to the Constitution requiring consultation subject to the National Accord and Reconciliation Act are not met if the National Assembly receives a list of nominees to constitutional offices, on which there is open and express disagreement between His Excellency, the President and the Prime Minister. Such is not the nomination contemplated by the National Accord and Reconciliation Act, which is part of the Constitution. It is unconstitutional and the unconstitutionality cannot be cured by any act of this House or of its Committees nor by a vote on a Motion in the House. Further, and I so find, no Motion on such a nomination, whatever its terms and whatever the contents of the Report upon which the Motion is based, is admissible and I therefore hereby so order.

Enormous pressure had been piled on the President by civil society groups, the Prime Minister and Kenya’s foreign envoys among others. See story here.

In his statement withdrawing the nominations, the President argued that the Judicial Service Commission would now proceed with the nominations as required by the Constitution. This was the proper interpretation of the nominating and appointing process for constitutional office holders such as the Chief Justice, Attorney General and the Deputy Public Prosecutor that the High Court, the Judicial Service Commission, the Speaker of the National Assembly and the Commission on Implementation of the Constitution had already spelled out in opposing Kibaki’s unilateral appointments.

This withdrawal of Kibaki’s unilateral appointments is a victory for the checks and balances established in the new Constitution that subjects the President’s appointing authority of judicial officials not only to consultation with the Prime Minister, but also the Judicial Service Commission which has representation outside the government. Further, such nominations have to be approved by Parliament. Thus by withdrawing those nominees, the President effectively conceded the new Constitution’s consultative process had not been followed. It is notable that the current Attorney General Amos Wako who has otherwise been regarded as a lackey of the President (and is remembered for his maiden speech in Parliament declaring ‘no man save the President is above the law’) has repeatedly sided with those critical of the President’s nominations both in High Court proceedings as well as a member of the Judicial Service Commission. Perhaps with Wako’s days numbered as Attorney General, he is beginning to get some muscle!

To get a fuller picture of the constitutional issues at stake in this controversy, here are some excerpts from the High Court ruling ordering the President to hold off the appointments until their constitutionality was established. The case is Centre For Rights Education And Awareness (Creaw) & 7 others v Attorney General [2011] eKLR (decision of 3rd February, 2011):

What are the major violations of the Constitution complained of by the petitioners? 

(i) That the nomination of the Chief Justice was unconstitutional… Miss Mbiyu on behalf of the Attorney General conceded that the President ought to have received recommendations from the Judicial Service Commission before he made the aforesaid nomination. It is in the public domain that the Attorney General, who is a member of the Judicial Service Commission, signed a joint statement of the Commission to that effect. That was done just about four days ago…On the basis of the concession made by the Attorney General, who is the respondent in this petition, it must be accepted that the said nomination did not comply with the constitutional requirements of Article 166(1) (a) as read together with Section 24(2) of Schedule Six of the Constitution. To that extent, the petitioners have proved that the nomination was unconstitutional. The rule of harmony in interpreting the Constitution as earlier stated has to be borne in mind.

The second issue relating to the constitutionality of the nomination to the office of the Chief Justice is whether it was done after consultation between the President and the Prime Minister in accordance with the National Accord and Reconciliation Act… there was no consensus or agreement between the two principals, which I must state, is not a requirement under the provisions of Section 24(2) of Schedule Six of the Constitution. That notwithstanding, the values and principles stated under Article 10 and the spirit of the National Accord and Reconciliation Act ought to have been borne in mind in making the nominations.

(ii) Violation of Article 27(3) regarding equal treatment of men and women.

To the extent that all the nominees to the offices of the Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget were all men, the spirit of equality and freedom from discrimination was not given due consideration…. While it may be argued that in future appointments to public offices women were likely to be included as submitted by Mr. Kihara, no reasonable explanation was given by the respondent why none of the four appointees was a woman.

In view of the violations to the letter and spirit of the Constitution as shown hereinabove, even without considering other relevant provisions of the Constitution, like Article 10, which spells out national values and principles of governance, I am satisfied that the petitioners have demonstrated that they have a prima facie case with a likelihood of success.

Kenya’s Deferral Bid Unlikely to End Up on the Security Council’s Agenda

February 21, 2011

Although Kenya and the African Union have both written to the Security Council requesting a deferral, the Security Council has yet to place Kenya’s deferral request on the agenda. February’s Security Council Monthly Work Programme does not yet list Kenya’s request.

Under Rule Six of the Provisional Rules of Procedure of the Security Council, for an item to be placed before the agenda of the Security Council, it has to be brought to its attention by a communication by a Member State, an Organ of the United Nation or the Secretary General. In its entirety, Rule Six provides:

“The Secretary-General shall immediately bring to the attention of all representatives on the Security Council all communications from States, organs of the United Nations, or the Secretary-General concerning any matter for the consideration of the Security Council in accordance with the provisions of the Charter.”

At the moment, no member of the Council has requested the matter be placed on the agenda. Three African countries currently sit on the Security Council as non-permanent members. These are Gabon, Nigeria and South Africa. All three voted in favor of Kenya’s deferral request at the recent African Union Summit, but none has stepped forward to request the Council to consider the matter.

China which has previously expressed support for Kenya’s deferral bid assumes the Presidency of the Security Council in March and that may present Kenya an opportunity have the matter placed on the Council’s agenda. However, as I note below, that is unlikely to happen.

The last time the Security Council took up Kenya’s post election violence was on 6th February, 2008. In a Presidential Statement, the Council expressed ‘deep concern’ about the post election violence and encouraged dialogue, reconciliation and compromise to prevent its escalation. Most significantly, the Statement called for those responsible to be “brought to justice.” See statement here.

Assuming Kenya’s request does get on the Security Council’s agenda, it cannot demonstrate that it has brought those responsible for the 2008 post election violence to justice. The coalition government of President Mwai Kibaki and Prime Minister Raila Odinga are currently deadlocked on nominees for Chief Justice and a Deputy Public Prosecutor. See analysis of the deadlock here

Since Kenya’s deferral request is primarily predicated on its ability to conduct credible domestic prosecutions under the new Constitution, the current stalemate within the government to begin reforming the judiciary substantially undermines its deferral bid. Indeed, even if these judicial appointees were agreed upon, setting up a credible local tribunal to try post election offenders would take several months. That together with threatened vetoes by the US and UK and the lack of support by the African delegations to the Security Council substantially reduces the likelihood of Kenya’s deferral bid ending up on the Council’s Agenda.

UK Will Not Support Kenya’s Deferral Bid

February 16, 2011

The U.K.’s High Commissioner to Kenya has announced that the UK will not support Kenya’s bid for a deferral of the impending application for summonses against six Kenyans. See story here.

That means that there are now two permanent members of the Security Council opposed to Kenya’s deferral bid. The other is the United States as noted in a previous posting.

Only China has indicated its willingness to consider supporting Kenya’s bid among the permanent members of the council. See prior posting.

South Africa currently a non-permanent member of the Council has indicated its support for Kenya. See here.

In the meantime, President Mwai Kibaki is going ahead with the lobbying campaign in favor of the deferral. In the last few days he  met with Kenya’s Ambassadors in several key Western capitals for a briefing. See story here,  and here.

What is increasingly becoming clear is that the deferral bid is part of President Kibaki’s succession plan to sideline his coalition partner Prime Minister Raila Odinga from assuming the reigns of the Presidency in the 2012 campaign and instead to have a coalition led by William Ruto, Uhuru Kenyatta (who are both on O’Campo’s summonses applications) and Vice-President Kalonzo Musyoka. See related story here and here.

O’Campo Censured by Pre-Trial Chamber for Exposing Kenyan Suspects to Prejudicial Publicity

February 14, 2011

The writing is on the wall. The unprecedented announcement by O’Campo last December of six suspects he will be seeking summons against long before the ex parte hearings begin would raise fair trial questions. In its letter applying for deferral of the case to the Security Council, Kenya argued that the announcement of the six suspects had already unfairly prejudiced them. See story on the deferral letter here.  

Now the Pre-Trial Chamber has issued a ruling denying relief to participate in the Article 58(7) of the Rome Statute Ex Parte Proceedings sought by one of the six Kenyan suspects, (Mohammed Hussein Ali),  but in the process chiding O’Campo for having made the announcement to the press in the manner he did before seeking the summons. Said the three judges:

“The Chamber is cognizant of the concerns of the Applicant with respect to theprejudice suffered due to the public disclosure of his name made by the Prosecutor…While it is not the Chamber’s role to comment and advise the Prosecutor on his interaction with the press and media, the Chamber nevertheless is concerned if his actions have the potential to affect the administration of justice and the integrity of the present proceedings before the Chamber. In this respect, the Chamber expresses its deprecation regarding the Prosecutor’s course of action in the present case, as it has unduly exposed the Applicant to prejudicial publicity before a determination of the Chamber pursuant to article 58 of the Statute has even been made.” See ruling here.

In the meantime, opinion polls in the country continue to show majority support for Hague trials. See story here.

US Will Block Kenya’s Deferral Request at the ICC as Kalonzo Argues Deferral Would Affirm Kenya’s New Start

February 14, 2011

Outgoing US Ambassador, Michael Ranneberger, to Kenya has announced that the US will block Kenya’s deferral request when it comes to the United Nations Security Council. See story here and here.

In the meantime, Vice President Kalonzo Musyoka has continued to defend Kenya’s deferral bid as necessary to support the fledgling reforms under the 2010 Constitution and to protect Kenya’s sovereignty. See story here and here.

He denied that the deferral bid did not take into account the interests of post election violence and instead argued that the move was intended to promote reconciliation. See Musyoka’s statement to Parliament on his shuttle diplomacy in Africa seeking support for the deferral.

In an opinion piece in Sunday papers in Nairobi on February, 13, 2011, Kalonzo argued that “A deferral is simply an affirmation of Kenya’s new start and a chance to give our new institutions room to flourish. Deferral is not a permanent cessation of ICC action. It is only suspension for one year within which time, if no local mechanism has been set up, then the ICC process can continue.” Kalonzo further argued that the deferral bid was necessary because “All Kenya wants from the ICC is respect for the strides we have made since 2007/2008.”