Home » Media Centre » Blogs » Deferral, referral, challenge to admissibility are we confused yet!?
By Mzalendo Contributor - Moreen Majiwa (@mmajiwa)
Yesterday the Attorney General Amos Wako plainly stated that the ‘shuttle diplomacy’
had been a failure after a several permanent members of the United Nations Security
Council (UNSC) said that the Kenya case did not meet the threshold for a UNSC
resolution for a one-year deferral of the its ICC case against the six suspects.
So what now? The government has appointed a Queen’s Council and Barrister-at-law to
challenge the admissibility of the Kenya case at the International Criminal Court (side
note: are there no qualified Kenyan lawyers that could challenge admissibility at the ICC,
first the hiring of the foreign firm manage social media and now lawyers to defend the
ICC case?).
According to the Rome Statute a challenge to admissibility can be made under Article
19 by either by an accused person for whom a warrant of arrest or a summons to appear
has been issued under article 58, or by ‘a State which has jurisdiction over a case, on the
grounds that it is investigating or prosecuting the case or has investigated or prosecuted’
or by ‘a State from which acceptance of jurisdiction is required under article 12’.
The third option is not open to Kenya since the country is a signatory to and has
domesticated the Rome Statute. So the only grounds left on which the state/government
can challenge admissibility of the case is on the grounds that it is investigating or
prosecuting the case or has investigated or prosecuted the case. But this raises a few
questions.
Considering a considerable amount of tax-payers money has already been wasted on
shuttle diplomacy and there has been no consultation with the people of Kenya as
to whether they want to use even more of their tax shillings to hire foreign counsel to
challenge admissibility - why can’t the six suspects for whom summons to appear has
been issued challenge admissibility in their individual capacity under Article 19 (2)? Why
should state resources be spent to challenge admissibility of case?
Another issue with the challenge of admissibility is requirement for the government to
show that it is investigating or prosecuting the case or has investigated or prosecuted.
Notice the tense requires that the investigations or prosecutions be underway or already
completed at the time when admissibility is being challenged. Now I may be wrong
but to my knowledge there is currently there no evidence to indicate that the state is
investigating or prosecuting any of the six suspects.
So is this challenge to admissibility another exercise in futility considering that there is a
slew of judicial reforms that needs to occur before the state/government can even begin to
mount a processes that will be seen as credible and legitimate?
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