10 November 2012

Kenya: ICC Judges Reject Appeal to Move Case to Nairobi

Photo: Capital FM/Charles Kimani
William Ruto, center, and Uhuru Kenyatta, right, face charges from the International Criminal Court for post-election violence in 2007-2008.

THE ICC trial judges yesterday rejected a proposal by deputy Prime Minister Uhuru Kenyatta and former Cabinet Secretary Francis Muthaura that their cases be held in Kenya or Tanzania.

Uhuru had proposed that the case, which is due to start in April 2012 be moved from the Hague to Kenyaor Arusha as Muthaura had proposed.

The judges led by Kuniko Ozako directed Uhuru's and Muthaura's lawyers to direct their proposals to the presidency of the court and not the trial judges.

The judges said the lawyers--Karim Khan, Essa Faal, Kennedy Ogetto and Shyamala Alagendra for Muthaura and Steven Kay and Gillian Higgins for Uhuru--had failed to use the correct channels to present their request. They advised the two to submit their request afresh through the presidency.

"The chamber rejects the request by the Kenyatta defence to change the place of the trial, without prejudice to the right of the defence to address its application to the Presidency, should it wish further to pursue the option of changing the place where the Court sits," the judges said.

The two had expressed their intentions to move the trial venue in their May 28 submissions. In his submission, Uhuru requested the trial to be held in Kenya "for reasons of judicial economy."

Muthaura requested the court "to consider the possibility" of holding the trial in Kenya or in Arusha at the premises of the International Criminal Tribunal for Rwanda.

He said changing the trial venue from the Hague to either Nairobi or Arusha would reduce the disruption and strain that the proceedings would place on him and his co-accused.

He said it would also reduce the costs of travel for their witnesses, reduce disruption to victims and ensure that the the process remains close to Kenya.

Muthaura requested the judges to invite competent authorities from Kenya or Tanzania to inform the trial chamber on the feasibility and their willingness of hosting the trial proceedings on their territory.

Consequently, the judges also rejected Muthaura request to invite submissions from the authorities in Kenya and Tanzania as to the prospect of holding the trial in either country.

The judges agreed in principle that under Article 3(3) of the Rome Statute, the court may sit wherever it considers desirable and not necessarily at the Hague.

They nevertheless said the rules of the court set out the procedure for requesting a change of the trial venue which Uhuru and Muthaura had failed to follow.

According to Rule 100, any application for a change of the trial venue should be addressed in writing to the presidency of the court by either the prosecutor, defence or by majority of the judges.

The presidency would then consult the state proposed and if it had no objection, the judges would then take a vote on the matter. A decision to move or change the trial venue is only effected if it gets the support of two thirds majority of the judges.

An ICC trial in Kenya would immensely benefit Uhuru who is aspiring to lead the country after the March 4, 2013 polls. An active ICC trial at the Hague would complicate his administration if he was elected president due to the requirement that all accused persons must be physically present in court during the trial.

His co-accused and another presidential hopeful William Ruto did request a change of venue for the trial and neither did his co-accused, radio journalist Joshua Arap Sang

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