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Kenya: Latest ICC Media Releases; Related News and Opinions

31 May 2011

Dear all,

On 30 May 2011, Pre-Trial Chamber II of the International Criminal Court (ICC) rejected the Kenyan Government’s challenges to the admissibility of the two cases brought before the Court in the context of the situation in Kenya: The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang as well as The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali. The Kenyan Government has five days from the date it was notified of the decision to appeal the Pre-Trial Chamber’s decisions, in which case the Appeals Chamber would make a final determination on the admissibility of the cases. The confirmation of charges hearings are currently scheduled for 1 September 2011 in the case against Ruto, Kosgey and Sang and for 21 September 2011 in the case against Muthaura, Kenyatta and Ali, to determine whether or not to send the cases against the six to trial.

This message includes the latest press releases and decisions issued by the ICC (I), as well as related news and opinions (II)

Please take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

With regards,
CICC Secretariat
www.coalitionfortheicc.org

***************************************
I. LATEST ICC PRESS RELEASES

Note: These documents have been produced by the ICC. The CICC Secretariat distributes it as part of its mandate to keep member organizations and individuals informed about developments related to the ICC. The document does not reflect the views of the CICC as a whole or its individual members.

1. “Pre-Trial Chamber II confirms the admissibility of the two cases in the Kenyan situation”, ICC press release, 30 May 2011, ICC-CPI-20110530-PR679, http://www.icc-cpi.int/NR/exeres/194B6F7E-1E2D-402C-B531-53647A309CB8.htm

“Today, 30 May 2011, Pre-Trial Chamber II of the International Criminal Court (ICC) rejected the Kenyan Government’s challenges to the admissibility of the two cases brought before the Court in the context of the situation in Kenya: The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang as well as The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali. The suspects had appeared voluntarily before the Chamber on 7 and 8 April 2011, following summonses to appear issued by the judges.

After careful analysis of the Kenyan Government’s applications and of the observations of parties and participants to the proceedings, Pre-Trial Chamber II considered 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. 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 for. 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.

Background
On 31 March 2011, the Chamber received the applications on behalf of the Government of the Republic of Kenya challenging the admissibility of the cases, in application of the principle of compelementarity which allows the ICC to intervene only if the national authorities do not investigate or prosecute, or is otherwise unwilling or unable genuinely to carry out the proceeding against the suspects for the same alleged conduct. The Government of Kenya argued, inter alia, that the Chamber must make its determination "with a full understanding of the fundamental and far-reaching constitutional and judicial reforms", both recently enacted and anticipated, as well as "the investigative processes that are currently underway", in order to consider that “Kenya is able to conduct national criminal proceedings for all crimes arising from the post-election violence".

RELATED ICC DECISIONS:

a. “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute,” ICC-01/09-01/11-101, Pre-Trial Chamber II, 30 May 2011, http://www.icc-cpi.int/Menus/Go?id=14fca2be-b60c-4364-86a8-14860bf3bf67&lan=en-GB

b. “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute” ICC-01/09-02/11-96, Pre-Trial Chamber II, 30 May 2011, http://www.icc-cpi.int/Menus/Go?id=e51def47-c314-424e-955e-e4dae03fef91&lan=en-GB

2. “Statement of the Prosecutor on the Situation in Kenya”, ICC - Office of the Prosecutor, 29 May 2011, http://www.icc-cpi.int/NR/rdonlyres/FBD99010-563A-497E-95FD-B3BCDBB08D09/283377/StatementICCProsecutoronsituationinKenya1.pdf

“On Monday a team from the Office of the Prosecutor will be in Kenya to discuss protection of witnesses with Kenyan authorities.

We will asses not just the specific protection program, but will also want to understand the current position of the Government in relation with the Post Electoral Violence.

On 5 November 2009, President Kibaki and Prime Minister Odinga stated their commitment to cooperate with the Court. We received strong cooperation, but since we announced the names of the 6 suspects we have seen a shift in position: high ranking members of the government are misrepresenting ICC efforts to do justice for the victims as an attack against Kenyan sovereignty.

They are pursuing regional and political campaigns to stop the case. Not only is this sending the wrong signal, but it is also promoting a growing climate of fear that is intimidating potential witnesses and ultimately undermining national and international investigations.

Our Office is doing what we promised to do: Justice for the victims. It was in the point 4 of the Agenda. Everyone agreed on the need to clarify the problem before the next election.

My question to the Kenyan government is this: does the government of Kenya want justice for the victims? We need an unequivocal answer, an answer that Kenyans and the world could understand. Is the government of Kenya protecting witnesses or protecting the suspects from investigation? That is the question.”

II. RELATED NEWS AND OPINIONS

1. “Kenyan government loses bid to stop Hague trials”, Aaron Gray-Block Reuters, 30 May 2011, http://af.reuters.com/article/topNews/idAFJOE74U03L20110531

2. “ICC judges throw out Kenya admissibility case”, Daily Nation, 30 May 2011, http://www.nation.co.ke/News/-/1056/1172050/-/10wlagsz/-/

3. “Kenya committed to working with unrest probe: PM”, AFP, 30 May 2011, http://www.google.com/hostednews/afp/article/ALeqM5gm8iF4W_0w4Ha6L2FP12tm73q61A?docId=CNG.c3b8f4d5e0144d0799897186ee2c8657.261

4. “Kenya's AG threatens to sue Ocampo”, Daniel Waitere/ Glena Nyamwaya, KBC, http://www.kbc.co.ke/news.asp?nid=70478

5. “Ocampo Six lawyers express fears of arrest warrants”, The Standard, 30 May 2011, http://www.standardmedia.co.ke/sports/InsidePage.php?id=2000036180&cid=159

6. “Kenya: Nation Wants Oral Hearing Before ICC”, Oliver Mathenge, Daily Nation 19 May 2011, http://allafrica.com/stories/201105191295.html

7. “Kenya: Senior ICC Officials Jet in, to Meet Saitoti”, Oliver Mwenda, Nairobi Star, 19 May 2011, http://allafrica.com/stories/201105190610.html

8. “Ocampo team due in Kenya on Monday”, Judie Kaberia , Capital News, 30 May 2011, http://www.capitalfm.co.ke/news/Kenyanews/Ocampo-team-due-in-Kenya-on-Monday-13004.html#ixzz1NuqV9piZ

9. “ICC prosecutor hits Kenya for trying to stop trials”, 29 May 2011, Aaron Gray-Block, Reuters, http://af.reuters.com/article/kenyaNews/idAFLDE74S08720110529

10. “Ocampo accuse Kenya of plot to halt trial”, NTVKenya, 29 May 2011, http://www.youtube.com/watch?v=g9PPPL8J61A&feature=player_embedded [AUDIOVISUAL]

11. “Surveys: Kenyan public maintains strong support for ICC process”, By Tom Maliti
ICC Kenya, 26 May 2011, http://www.icckenya.org/2011/05/surveys-kenyan-public-maintains-strong-support-for-icc-process/

12. “Majority of Kenyans want ICC intervention in post-election chaos: AU”, Xinhua News Agency, 26 May 2011, http://english.peopledaily.com.cn/90001/90777/90855/7391593.html

13. “Why Ocampo Six now on their own”, David Ochami, Evelyn Kwamboka and Cyrus Ombati, The Standard, 30 May 2011, http://www.standardmedia.co.ke/InsidePage.php?id=2000036171&cid=4&ttl=Why Ocampo Six now on their own

14 “Activist opposes Africa’s move against ICC”, Judie Kaberia, Capital FM
http://www.capitalfm.co.ke/news/Kenyanews/Activist-opposes-Africa’s-move-against-ICC-12953.html

15. “German envoy casts doubt on Kenya courts”, The Nation, 25 May 2011, http://www.nation.co.ke/News/politics/German+envoy+casts+doubt+on+local+courts+/-/1064/1169628/-/8tgimg/-/

16. “Kenyan VP criticises International Criminal Court,” By Emmanuel Ogala, Next News, 31 May 2011, http://234next.com/csp/cms/sites/Next/News/5707624-147/story.csp

17. “Kenya: ICC Politics Hindrance to Reform, Says Annan” IJ Central, 25 May 2011, http://ijcentral.org/news/report_icc_politics_derailing_kenyas_reform_agenda/

18. “Analysis: Truth and consequences in Kenya”, IRIN News, 23 May 2011, http://www.irinnews.org/report.aspx?reportid=92788

19. “Kenya: Government Writes to ICC in a Bid to Explain Kimelis Death” Oliver Mwenda, Nairobi Star, 20 May 2011. http://allafrica.com/stories/201105200026.html

************************************************
CICC's policy on the referral and prosecution of situations before the ICC:

The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts. Communications to the ICC can be sent to: ICC P.O. box 19519 2500 CM the Hague The Netherlands

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News Browse by Region Media Digests Country Updates UN Excerpts on the ICC Updates of the Assembly Browse by Region		Kenya: Latest ICC Media Releases; Related News and Opinions 31 May 2011 Dear all, On 30 May 2011, Pre-Trial Chamber II of the International Criminal Court (ICC) rejected the Kenyan Government’s challenges to the admissibility of the two cases brought before the Court in the context of the situation in Kenya: The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang as well as The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali. The Kenyan Government has five days from the date it was notified of the decision to appeal the Pre-Trial Chamber’s decisions, in which case the Appeals Chamber would make a final determination on the admissibility of the cases. The confirmation of charges hearings are currently scheduled for 1 September 2011 in the case against Ruto, Kosgey and Sang and for 21 September 2011 in the case against Muthaura, Kenyatta and Ali, to determine whether or not to send the cases against the six to trial. This message includes the latest press releases and decisions issued by the ICC (I), as well as related news and opinions (II) Please take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC. With regards, CICC Secretariat www.coalitionfortheicc.org ************************************* I. LATEST ICC PRESS RELEASES Note: These documents have been produced by the ICC. The CICC Secretariat distributes it as part of its mandate to keep member organizations and individuals informed about developments related to the ICC. The document does not reflect the views of the CICC as a whole or its individual members. 1. “Pre-Trial Chamber II confirms the admissibility of the two cases in the Kenyan situation”, ICC press release, 30 May 2011, ICC-CPI-20110530-PR679, http://www.icc-cpi.int/NR/exeres/194B6F7E-1E2D-402C-B531-53647A309CB8.htm “Today, 30 May 2011, Pre-Trial Chamber II of the International Criminal Court (ICC) rejected the Kenyan Government’s challenges to the admissibility of the two cases brought before the Court in the context of the situation in Kenya: The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang as well as The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali. The suspects had appeared voluntarily before the Chamber on 7 and 8 April 2011, following summonses to appear issued by the judges. After careful analysis of the Kenyan Government’s applications and of the observations of parties and participants to the proceedings, Pre-Trial Chamber II considered 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. 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 for. 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. Background On 31 March 2011, the Chamber received the applications on behalf of the Government of the Republic of Kenya challenging the admissibility of the cases, in application of the principle of compelementarity which allows the ICC to intervene only if the national authorities do not investigate or prosecute, or is otherwise unwilling or unable genuinely to carry out the proceeding against the suspects for the same alleged conduct. The Government of Kenya argued, inter alia, that the Chamber must make its determination "with a full understanding of the fundamental and far-reaching constitutional and judicial reforms", both recently enacted and anticipated, as well as "the investigative processes that are currently underway", in order to consider that “Kenya is able to conduct national criminal proceedings for all crimes arising from the post-election violence". RELATED ICC DECISIONS: a. “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute,” ICC-01/09-01/11-101, Pre-Trial Chamber II, 30 May 2011, http://www.icc-cpi.int/Menus/Go?id=14fca2be-b60c-4364-86a8-14860bf3bf67&lan=en-GB b. “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute” ICC-01/09-02/11-96, Pre-Trial Chamber II, 30 May 2011, http://www.icc-cpi.int/Menus/Go?id=e51def47-c314-424e-955e-e4dae03fef91&lan=en-GB 2. “Statement of the Prosecutor on the Situation in Kenya”, ICC - Office of the Prosecutor, 29 May 2011, http://www.icc-cpi.int/NR/rdonlyres/FBD99010-563A-497E-95FD-B3BCDBB08D09/283377/StatementICCProsecutoronsituationinKenya1.pdf “On Monday a team from the Office of the Prosecutor will be in Kenya to discuss protection of witnesses with Kenyan authorities. We will asses not just the specific protection program, but will also want to understand the current position of the Government in relation with the Post Electoral Violence. On 5 November 2009, President Kibaki and Prime Minister Odinga stated their commitment to cooperate with the Court. We received strong cooperation, but since we announced the names of the 6 suspects we have seen a shift in position: high ranking members of the government are misrepresenting ICC efforts to do justice for the victims as an attack against Kenyan sovereignty. They are pursuing regional and political campaigns to stop the case. Not only is this sending the wrong signal, but it is also promoting a growing climate of fear that is intimidating potential witnesses and ultimately undermining national and international investigations. Our Office is doing what we promised to do: Justice for the victims. It was in the point 4 of the Agenda. Everyone agreed on the need to clarify the problem before the next election. My question to the Kenyan government is this: does the government of Kenya want justice for the victims? We need an unequivocal answer, an answer that Kenyans and the world could understand. Is the government of Kenya protecting witnesses or protecting the suspects from investigation? That is the question.” II. RELATED NEWS AND OPINIONS 1. “Kenyan government loses bid to stop Hague trials”, Aaron Gray-Block Reuters, 30 May 2011, http://af.reuters.com/article/topNews/idAFJOE74U03L20110531 2. “ICC judges throw out Kenya admissibility case”, Daily Nation, 30 May 2011, http://www.nation.co.ke/News/-/1056/1172050/-/10wlagsz/-/ 3. “Kenya committed to working with unrest probe: PM”, AFP, 30 May 2011, http://www.google.com/hostednews/afp/article/ALeqM5gm8iF4W_0w4Ha6L2FP12tm73q61A?docId=CNG.c3b8f4d5e0144d0799897186ee2c8657.261 4. “Kenya's AG threatens to sue Ocampo”, Daniel Waitere/ Glena Nyamwaya, KBC, http://www.kbc.co.ke/news.asp?nid=70478 5. “Ocampo Six lawyers express fears of arrest warrants”, The Standard, 30 May 2011, http://www.standardmedia.co.ke/sports/InsidePage.php?id=2000036180&cid=159 6. “Kenya: Nation Wants Oral Hearing Before ICC”, Oliver Mathenge, Daily Nation 19 May 2011, http://allafrica.com/stories/201105191295.html 7. “Kenya: Senior ICC Officials Jet in, to Meet Saitoti”, Oliver Mwenda, Nairobi Star, 19 May 2011, http://allafrica.com/stories/201105190610.html 8. “Ocampo team due in Kenya on Monday”, Judie Kaberia , Capital News, 30 May 2011, http://www.capitalfm.co.ke/news/Kenyanews/Ocampo-team-due-in-Kenya-on-Monday-13004.html#ixzz1NuqV9piZ 9. “ICC prosecutor hits Kenya for trying to stop trials”, 29 May 2011, Aaron Gray-Block, Reuters, http://af.reuters.com/article/kenyaNews/idAFLDE74S08720110529 10. “Ocampo accuse Kenya of plot to halt trial”, NTVKenya, 29 May 2011, http://www.youtube.com/watch?v=g9PPPL8J61A&feature=player_embedded [AUDIOVISUAL] 11. “Surveys: Kenyan public maintains strong support for ICC process”, By Tom Maliti ICC Kenya, 26 May 2011, http://www.icckenya.org/2011/05/surveys-kenyan-public-maintains-strong-support-for-icc-process/ 12. “Majority of Kenyans want ICC intervention in post-election chaos: AU”, Xinhua News Agency, 26 May 2011, http://english.peopledaily.com.cn/90001/90777/90855/7391593.html 13. “Why Ocampo Six now on their own”, David Ochami, Evelyn Kwamboka and Cyrus Ombati, The Standard, 30 May 2011, http://www.standardmedia.co.ke/InsidePage.php?id=2000036171&cid=4&ttl=Why Ocampo Six now on their own 14 “Activist opposes Africa’s move against ICC”, Judie Kaberia, Capital FM http://www.capitalfm.co.ke/news/Kenyanews/Activist-opposes-Africa’s-move-against-ICC-12953.html 15. “German envoy casts doubt on Kenya courts”, The Nation, 25 May 2011, http://www.nation.co.ke/News/politics/German+envoy+casts+doubt+on+local+courts+/-/1064/1169628/-/8tgimg/-/ 16. “Kenyan VP criticises International Criminal Court,” By Emmanuel Ogala, Next News, 31 May 2011, http://234next.com/csp/cms/sites/Next/News/5707624-147/story.csp 17. “Kenya: ICC Politics Hindrance to Reform, Says Annan” IJ Central, 25 May 2011, http://ijcentral.org/news/report_icc_politics_derailing_kenyas_reform_agenda/ 18. “Analysis: Truth and consequences in Kenya”, IRIN News, 23 May 2011, http://www.irinnews.org/report.aspx?reportid=92788 19. “Kenya: Government Writes to ICC in a Bid to Explain Kimelis Death” Oliver Mwenda, Nairobi Star, 20 May 2011. http://allafrica.com/stories/201105200026.html ********************************************** CICC's policy on the referral and prosecution of situations before the ICC: The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts. Communications to the ICC can be sent to: ICC P.O. box 19519 2500 CM the Hague The Netherlands