ICC: Chamber denies Uhuru, Muthaura requests for oral appeals

By Wahome Thuku

Lawyers for Deputy Prime Minister Uhuru Kenyatta and former Head of Public Service Francis Muthaura will not be allowed to address judges of the International Criminal Court (ICC) Appeals Chamber.

The two are among four Kenyans facing trial at The Hague for crimes against humanity over the 2008 post-election violence.The others are Eldoret North MP William Ruto and Kass FM executive Joshua arap Sang

Uhuru and Muthaura had wanted their lawyers to make oral submissions on an appeal they filed, which is pending
before the Chamber. This would have meant opening the session for the media to beam the proceedings live from The Hague.

In rejecting the request on Friday, the presiding judge of the Appeal Division Akua Kuenyehia said the Chamber declined to convene an oral hearing session because written submissions by Uhuru’s and Muthaura’s lawyers will be sufficient to determine the appeal.

Further, the Chamber rejected their argument that it was obliged to hear their appeal in public, the same way they would have been heard if they were being tried in Kenya.

The decision now means the five judges will only consider the paperwork filed before them to decide whether the ICC has jurisdiction to try Uhuru and Muthaura. It also means the Chamber could make its decision even before summonses are issued for the suspects to appear before the Trial Chamber constituted in March.

The Appeals Chamber comprises  five judges: Akua, Sang-Hyun Song, Sanji Mmasenono Monageng, Erkki Kourula and Anita Usacka. All of them must sit to determine any appeal brought before them.
challenged jurisdiction

However, only one judge of the Chamber is needed to determine an application such as the one made by Uhuru and Muthaura for oral submissions.

Uhuru and Muthaura are challenging the jurisdiction of the ICC to try them for crimes that arose from the 2008 post-election violence. Since ICC prosecutor Luis Moreno-Ocampo instituted the case, their argument has been that the crimes committed after the controversial Presidential election do not meet the threshold of crimes against humanity.

The Pre-Trial Chamber confirmed the charges against the two by majority on January 23, sending them to full trial. It also confirmed charges against Ruto and Sang, ruling that the cases meet the threshold for hearing by the ICC, but declined to confirm similar charges against Tinderet MP Henry Kosgey and Postmaster General Mohammed Hussein Ali.

German judge Hans Peter Kaul, however, maintained his earlier position that the cases did not meet the threshold to be tried by the ICC. The four suspects have filed appeals challenging the findings of the Pre-Trial Chamber that the jurisdictional requirements had been met.

Uhuru and Muthaura filed theirs on January 30, and on April 25, they filed their request for oral submissions in the appeal.
They argued that an oral hearing would be in line with the intense public interest in the case in Kenya, Africa, and for the international community.

public hearing

They cited the Constitution and the Criminal Procedure Code (CPC) that safeguards the right to a public hearing, saying the ICC was obliged to follow those provisions.

“The Appeals Chamber is obliged under the Rome Statute to apply the national laws of States, which would normally exercise jurisdiction over the crimes,” their lawyers submitted.“Proper weight should be accorded to the relevant provisions of the Kenyan Constitution and the CPC,”

Queen’s counsel Steven Kay and Gillian Higgins represented Uhuru. Karim Khan and Essa Faal represented Muthaura.The lawyers further argued that oral hearings would not delay the case, but complement the Chamber’s ongoing deliberations and assist it in any issues that need further clarification. In any event, they submitted, the actual trial had not started.

They also contended that an oral hearing would be the most effective way of scrutinising the merits of their written submissions already filed before the Pre-trial and the Appeals Chambers.

But judge Kuenyehia said the Chamber was not convinced that an oral hearing was necessary.

Rule 156(3) of the Rules of Procedure and Evidence under the Rome Statute provides that the appeal proceedings shall be in writing, unless the Appeals Chamber decides to convene a hearing.

The judge also rejected argument that the Chamber was obliged to apply the Kenyan law. She said the court was obliged to first apply the Rome Statute and rules of evidence, then treaties, principles and rules of international law, and only if those failed would it resort to the general principles of law of respective member States.
voluminous submissions

“The Appeals Chamber is not obliged to apply Kenyan law and finds no reason in the present case to deviate from the norm,” he held.

He observed that the written submissions made by Uhuru and Muthaura were already in the public domain, hence the publicity of the proceedings was guaranteed.

Convening an oral hearing at this juncture, said the judge, would unduly affect the expeditious resolution of the appeal.

“The submissions on the jurisdiction are already voluminous and detailed,” he added.

“Therefore, in the Appeal Chamber’s view, further oral submissions are not required.”

This means that the next time the ICC proceedings on the ‘Ocampo Four’ will be aired live will be during the trial itself.

The court has already decided that both the trial and appeal proceed concurrently.