Two professors, Max Hilaire & William Cohn who are based in the US have filed a request before the ICC Trial Chamber II to act as Amicus Curiae (a friend of the Court). Trial Chamber II is the court charged with deciding if the ICC’s prosecutor can open an investigation in the post-election violence in Kenya. The professors have asked the court to stay (hold) its decision on whether to allow investigations and give them 30 days to file their brief.

ICJ Kenya expresses its surprise and disappointment at this request which we feel is irresponsible and uninformed.

The Professors have declared publicly that they are not based in Kenya and they do not represent the government. We thus fail to see how they can provide information or insight to the issues stated in paragraph 9 (b), (c) & (d) of their request more adequately than the information already supplied to the ICC by the Government of Kenya and Kenyan Civil Society Organisations.

ICJ Kenya cannot help but take issue with the timing of the request to act as Amicus Curiae and in particular the prayer to stay the decision on the prosecutor’s request to start investigations in Kenya. The application by the Prosecutor to initiate investigations into Kenya was made on 26th November, 2009 yet the applicants have rested on their laurels until this late stage to fill this request. We can only speculate on the motive of this request, but we caution and advice that if it is done for the sake of academic pursuit and recognition, that the lives of thousands of Kenyans are being unduly put into further danger, with this untimely request.

Paragraph 3 of the professor’s request states that “Professor Hilaire thinks it is necessary to give the domestic African legal framework sufficient chance to work and permit the ICC intervention in exceptional circumstance”. ICJ Kenya is of the opinion that statement is an indication of insufficiently knowledge and interaction with the Kenyan situation. Reflecting on what has happened in the Country since January 2008 – January 2010 we note that:

a) Prosecutions and investigations into post-election violence suspects in Kenya were stalled by the Department of Public Prosecutors pending the determination of whether a Special Tribunal for Kenya would be established and/or referral of the Kenyan situation to the ICC. It is two years after the aforementioned post-election violence and either of the options above have been instituted. The DPP has not recommenced investigations or continued with the prosecutions nor has he intimated that he is considering doing so. A recent government report complied by government lawyers under the stewardship of the Director of Public Prosecutors dubbed the “Team on Review on Post-Election Violence-Related cases” disclosed to the media – The Standard newspaper - that many cases failed to proceed due to lack of evidence and raised serious concerns on the availability and ability to collect evidence.

The report shows that

• in the Rift Valley Province, 504 files were forwarded to the AG, of which 42 were tried to logical conclusion, while 46 were withdrawn
• in the Western Province, 23 files were forwarded to the AG, of which 16 were to proceed and 7 closed for lack of evidence
• in the Nyanza Province,  21 files were forwarded to the AG, of which 11 were to proceed
• in the Central Province, 2 files were forwarded
• in the Eastern Province, no case of post-election violence was reported
• in the Coast Province, only 6 files were pursued.

The status of inquest files are still undetermined;

b) To date, the first attempt to set up a Special Tribunal for Kenya was rejected by parliament. The second attempt failed at Cabinet level and the third attempt which was initiated by a Private Member of Parliament, is the subject of a parliamentary boycott; and

c) The so-called African legislative framework cited in the request, which we understand to mean the African Union, has taken a sympathetic but ineffective position to the situation in Kenya. The African Union has taken a blanket stand against the ICC on the perception the ICC is targeting the African continent, a perception perpetuated by some African personalities, most notably President Bashir of the Sudan.  This stand has been adopted without offering an alternative mechanism to Kenya. Furthermore, this blanket position discounts the fact that in three of the ICC interventions being the CAR, Uganda and the DRC, the intervention followed specific requests by those countries under Articles 13 (a) and 14 (1) and (2) of the Rome statute. In the Sudan, the intervention by the ICC followed a reference by the Security Council of the UN (UNSC Resolution 1593) exercising its mandate under Article 24 of the UN Charter and in keeping with the provisions of Article 15 of the Rome Statute.

Nonetheless, the AU position has widely been discredited by African civil society as representing the face of impunity in the continent. In July 2009, a group of 135 African civil society organisations, drawn from virtually all the countries in the continent issued a statement in which they observed that the AU decision “threatens to block justice for victims of the worst crimes committed on the continent”. They also observed that the AU position was “inconsistent with article 4 of the AU’s constitutive act that rejects impunity, as well as the treaty obligations of the 30 African governments that ratified the Rome Statute of the ICC”.

We are thus unable to understand what more is needed to classify Kenya as falling within the “exceptional circumstance” cited in the request. [Please see the notes on ICJ Kenya’s summary analysis of the 2007 Post-Election Violence.]

ICJ Kenya does agree with paragraph 10 of the request that highlights that the orders sought by the Prosecution are indeed precedent-setting and it is important for the Court to clearly establish the parameters of the exercise of the jurisdiction. However we must all accede to the fact that the Prosecutor acted on the basis of information received as required by the Statute. At the time these powers were exercised, the Kenyan authorities had been given numerous opportunities to conduct legitimate investigations and prosecutions or refer the matter to the ICC. On all occasions Kenya failed to act. The prosecutor has a duty to act where he receives information on egregious human rights violations which appear to be in consonance with the provisions of the Rome Statute. The information was provided to them by the Commission of Inquiry into Post Election Violence (CIPEV) and the Kenya National Commission on Human Rights (KNCHR).

A copy of the Request filed before the ICC is available here for further reference

decision of PTC II rejecting the application by the two American professors to appear as Amicus Curiae.