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Kenya: Latest News and Documents
20 May 2011
Dear all,

Please find below information about recent developments related to the International Criminal Court's (ICC) investigation in Kenya.

This message includes the latest information on the Kenyan government admissibility challenge (I), issues relating to the disclosure of evidence (II), the Women's Initiatives for Gender Justice and WITNESS recent video advocacy workshop in Kenya (III), as well as other news and opinions (IV), and audiovisual resources (V).

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

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I. KENYAN GOVERNMENT ADMISSIBILITY CHALLENGE

1. OTP DOCUMENT

"OTP files response to Kenyan Government admissibility challenge", OTP Weekly Briefing, 26 April - 2 May 2011, http://www.icc-cpi.int/NR/rdonlyres/62E64ECC-9AE4-4790-A9F1-961D4E10B0FA/283297/OTPWeeklyBriefing26April2May201185.pdf

"28 April - The Prosecutor filed responses to the "Application on behalf of the Government of the Republic of Kenya pursuant to Article 19 of the ICC Statute". The Prosecutor noted that the "determination whether a case is inadmissible under Article 17(1)(a) hinges upon "whether there are ongoing investigations or prosecutions" at the time of the proceedings concerning the admissibility challenge." Indeed, "different Chambers of the Court have consistently held that a case is only inadmissible if the State is investigating or prosecuting the same person for the same conduct that is the subject of the case before the Court." Consequently, "the fact that the Applicant is a State and is promising to conduct proceedings is not a valid reason to modify this substantive criterion."

Further, the Prosecutor cited the relevant articles and rules of procedure set out in the Rome Statute, which indicate that "permitting a lengthy timetable for submissions in order to evaluate the evolution of the local judicial institutions has no basis in the Statute, does not entail a case specific inquiry, and would undermine the expeditious conduct of proceedings." Additionally, the Prosecution asserted that the 22 supplemental annexes should be rejected as they were filed out of time, and yet noted that the supplemental materials "effectively demonstrate that there is currently no national investigation or prosecution related to the suspects for the conduct which forms the subject of the cases before the Court."

2. ICJ - KENYA AMICUS CURIAE REQUEST

On 27 April, Coalition member the Kenyan Section of the International Commission of Jurists (ICJ-Kenya) files a request for leave to submit Amicus Curiae Observations to Pre-Trial Chamber II relating to the Article 19 admissibility challenge filed by the Government of Kenya. IÇJ Kenya was seeking the authorization of the Chamber to submit as amicus curiae a proposed brief on the admissibility of the cases before the Court. On 11May 2011, the request was rejected by ICC Pre-Trial Chamber II on the basis that "receiving observations from the applicant on the issues proposed in the Request is not desirable for the proper determination of the case at this stage of the proceedings."

i. "Request for Leave to submit Amicus Curiae Observations on behalf of The Kenyan Section of the International Commission of Jurists Pursuant to Rule 103 of the Rules of Procedure and Evidence." 27 April 2011, http://www.icc-cpi.int/iccdocs/doc/doc1064923.pdf

ii. Decision on the "Request for leave to submit Amicus Curiae Observations on behalf of the Kenyan Section of the International Commission of Jurists Pursuant to Rule 103 of the Rules of Procedure and Evidence", 11 May 2011, http://www.icc-cpi.int/iccdocs/doc/doc1071153.pdf

3. RELATED NEWS COVERAGE

i. "Waki still advocates a local tribunal", by Judie Kaberia, 18 May 2011, Capital FM (Kenya), http://www.capitalfm.co.ke/news/Kenyanews/Waki-still-advocates-a-local-tribunal-12833.html

ii. "Kenya: Govt Investigating Ocampo Six, Nation Tells ICC" by Oliver Mathenge and Lillian Onyango, Daily Nation, 17 May 2011, http://allafrica.com/stories/201105180021.html

iii. "Kenya's Judicial Reform Moves Forward with Key Nominations", by Michael Onyiego, Voice of America, 16 May 2011
http://www.voanews.com/english/news/africa/Kenyas-Judicial-Reform-Moves-Forward-With-Key-Nominations-121892509.html

iv. "Outsiders nominated to be Kenya's next Chief Justice and Deputy Chief Justice", by Tom Maliti, ICC Kenya, 16 May 2011
http://www.icckenya.org/2011/05/outsiders-nominated-to-be-kenyas-next-chief-justice-and-deputy-chief-justice/

v. "Hague court rejects ICJ bid to join Kenya case," Capital FM, 12 May 2011, http://www.capitalfm.co.ke/news/Kenyanews/Hague-court-rejects-ICJ-bid-to-join-Kenya-case-12757.html

vi. "Midiwo Disowns Nyongo's Affidavit Against ICC Case", Nairobi Star, 5 May 2011 http://allafrica.com/stories/201105060122.html

vii. "Kenya gets 10 days to act on ICC case," By Rob Jillo, CapitalFM, 4 May 2011
http://www.capitalfm.co.ke/news/Kenyanews/Kenya-gets-10-days-to-act-on-ICC-case-12634.html

viii. "ICC counters Kenyan challenge", News 24, 3 May 2011
http://www.news24.com/Africa/News/ICC-counters-Kenyan-challenge-20110503

ix. "AP Interview: International prosecutor counters Kenya's challenge to right to try 6 Kenyans", by Edith M. Lederer, The Associated Press, 3 May 2011
http://www.1310news.com/news/world/article/220943--ap-interview-international-prosecutor-counters-kenya-s-challenge-to-right-to-try-6-kenyans

x. "Ruto lawyer opposes ICC trials", Nation, 1 May 2011
http://www.nation.co.ke/News/politics/Ruto+lawyer+opposes++ICC+trials+/-/1064/1154530/-/jtf4bm/-/

xi. "Ocampo wants Kenya's case thrown out", by Cyrus Ombati,The Standard, 29 April 2011
http://www.standardmedia.co.ke/sports/InsidePage.php?id=2000034124&cid=4

II. EVIDENCE DISCLOSURE ISSUES

1. OTP DOCUMENT

"Prosecution filed a response to the Government of Kenya's request for assistance pursuant to Article 93(10) and Rule 194 in which the Government requested the 'transmission of all statements, documents or other types of evidence obtained by the Court and the Prosecutor in the course of the ICC investigations into the post-election violence in Kenya'", OTP Weekly Briefing, 10 May 2011, http://www.icc-cpi.int/NR/rdonlyres/7D680A65-DCF9-4D5B-B7E3BE6D7A5A9FA6/283302/OTPWeeklyBriefing_310May2011.pdf

"Prosecution submitted that "a request for materials solely within the possession of the Prosecution is not subject to judicial determination under Article 93(10) and Rule 194" and that the Government of Kenya "has not established that there is an investigation ongoing in Kenya against the same individuals under investigation before the ICC." Furthermore, the Prosecution argued that "the Chamber's duty to protect victims and witnesses is a fatal obstacle to provide confidential information to the Government of Kenya" and that "the Chamber should not provide assistance unless it concludes that providing the requested information will not jeopardize the safety and well being of persons or the cases before this Court in accordance with article 68."

The Prosecution indicated that it has received reports that persons living in Kenya face threats, intimidation, and other attempts to discourage their participation in the investigation. In this regard, "the Prosecution considers that currently the suspects have the ability to influence the Government of Kenya policy and that any information provided to the Kenyan authorities can be used to attack victims and witnesses." The Prosecution also brought to the Chamber's attention "the circumstances surrounding the recent dismissal of criminal fraud charges against Ruto in Kenya. In particular, it is noteworthy that five witnesses slated to testify against him died before trial, 13 witnesses disappeared and could not be located, and remaining witnesses who survived and were available to testify recanted their previous incriminatory accounts and exculpated Ruto."

...The Prosecution finally submitted that it plans to send a preliminary mission to Kenya to evaluate current security protections and risks, and depending on the results of that mission, a more thorough analysis may be performed and an update provided to the Chamber. The Prosecution concluded by adding that in light of the current situation, "it would pose an unacceptable risk to persons and the investigation to disclose non public information at this time", requesting the Chamber therefore to deny the request for assistance."

2. RELATED NEW COVERAGE:

i. "Ruto, Ocampo in fresh evidence war", Standard Media, 19 May 2011, http://www.standardmedia.co.ke/InsidePage.php?id=2000035425&cid=4&ttl=Ruto, Ocampo in fresh evidence war

ii. "ICC: IDP fears for his life after death threats" by Robert Kiplagat, Standard Media, 19 May 2011, http://www.standardmedia.co.ke/InsidePage.php?id=2000035430&cid=4&ttl=ICC: IDP fears for his life after death threats

iii. "ICC judge dismisses Ocampo's plea", by Evelyn Kwamboka, Standard Mobile, 16 May 2011, http://m.standardmedia.co.ke/news.php?id=2000035110

iv. "Ocampo reveals his evidence," Standard Media, 12 May 2011, http://m.standardmedia.co.ke/headlines.php?id=2000034963

v. "Ocampo wins one case, loses another", AFP, 10 May 2011, http://www.capitalfm.co.ke/news/Kenyanews/Ocampo-wins-one-case,-loses-another.html

vi. "ICC rejects Muthaura's bid to gag Ocampo," The Standard, 6 May 2011 http://www.standardmedia.co.ke/sports/InsidePage.php?id=2000034639&cid=4

vii. "Ocampo seeks assurance of witnesses security", The Standard, 4 May 2011, http://www.standardmedia.co.ke/InsidePage.php?id=2000034447&cid=4&ttl=Ocampo seeks assurance of witnesses security

viii. "Unregistered Kenya PEV victims fault ICC ruling on evidence submission", by Beauttah Omanga, Standard Mobile, 3 May 2011, http://m.standardmedia.co.ke/headlines.php?id=2000034404

ix. "Ocampo's appeal over evidence fails", The Nation, 3 May 2011, http://www.nation.co.ke/News/Ocampos+appeal+over+evidence+fails+/-/1056/1155782/-/2t93u3z/-/

III. WOMEN'S INITIATIVES & WITNESS TRAINING: VIDEO ADVOCACY AND GENDER JUSTICE

1. VIDEO ADVOCACY AND GENDER JUSTICE

i. Video Advocacy and Gender Justice, Women's Initiatives for Gender Justice, 11 April 2011, http://www.iccwomen.org/news/berichtdetail.php?we_objectID=100

"From 28 March-6 April, the Women's Initiatives for Gender Justice and WITNESS held a ten-day video advocacy workshop in Nairobi, Kenya for gender justice activists from armed conflict situations. The training, part of a multi-year joint project to develop videos and multi-media strategies to advance gender justice, was attended by 17 partners of the Women's Initiatives from five countries- Sudan, the Democratic Republic of the Congo (DRC), Kenya, the Central African Republic (CAR) and Kyrgyzstan.

The training included an introduction to the 'mechanics' of using and maintaining video cameras, recording and storing footage, story-telling through video, safety and security issues for those interviewed as well as the videographers, editing and distribution of the videos once completed. This training follows shorter video advocacy workshops held in Bukavu, eastern DRC for 13 Women's Initiatives' partners during the World March for Women (October 2010) and in Kampala, Uganda for seven partners from the Greater North Women's Voices for Peace Network (December 2010).

Five video advocacy plans were developed during the Nairobi workshop, one for each country participating at the workshop on a range of gender justice issues including: a law reform campaign to advance legal rights for women in Sudan and specifically to amend the Sudanese rape law; advocacy for greater accountability for gender-based crimes in eastern DRC through strengthening implementation of the Sexual Violence Act, increased domestic prosecutions for these crimes and greater cooperation by the DRC Government with the ICC investigations; challenging police practices in Kenya which diminish the reporting of rape and other forms of sexual violence and also prevent survivors from accessing the necessary medical and psycho-social assistance; highlighting the epidemic of bride kidnapping in Kyrgyzstan, a practice believed to be responsible for between 20-80% of all 'marriages' in this country and an issue which has been critiqued by the CEDAW Committee as part of its universal periodic review process; and lastly, a call for the ICC to investigate attacks by the LRA militia group on communities in the south eastern province of Haut-Mbomou, CAR, where their activities have included pillaging and looting of villages, abductions, rape and enslavement.

Over the next two years, WITNESS, the Women's Initiatives and our partners will produce these videos to galvanise attention, political will and progress for gender justice. The video advocacy plans for Sudan, DRC and CAR are connected to the specific priorities developed with our local partners in each of the country-based programmes developed by the Women's Initiatives since 2004. The video advocacy project is also intended to further support and build the global gender justice movement of thousands of activists, practitioners, academics, victims/survivors, and gender experts around the world."

2. RELATED NEWS, BLOG AND VIDEOS

i. "Gender Justice Activists Integrate Video for Advocacy,"
By Chris Michael, WITNESS, 5 April 2011, http://blog.witness.org/2011/04/gender-justice-activists-integrate-video-for-advocacy/

ii. "Women's Initiatives for Gender Justice & WITNESS Training Video Advocacy in Kenya," Video report, 9 May 2011, http://www.youtube.com/watch?v=9zraub9_m0g

iii. "Kenya: Plea to ICC over forced male circumcision", IRIN, 25 April 2011, http://www.irinnews.org/Report.aspx?ReportID=92564

IV. OTHER NEWS AND OPINIONS

i. "Kenyan Trial Asks, Can Journalism Be a War Crime?", by Robbie Corey-Boulet, The Atlantic, 16 May 2011,
http://www.theatlantic.com/international/archive/2011/05/kenyan-trial-asks-can-journalism-be-a-war-crime/238692/

ii. "Ruto's bid to contact witnesses halted", by Evelyn Kwamboka, Standard Media, 12 May 2011, http://www.standardmedia.co.ke/InsidePage.php?id=2000035040&cid=4

iii. "ICC to Probe Radio's Role in Kenya Violence", by Robbie Corey-Boulet, IWPR, ACR Issue 297, 10 May 2011, http://iwpr.net/report-news/icc-probe-radio’s-role-kenya-violence

iv. "FACTBOX-Key political risks to watch in Kenya", by James Macharia, Reuters, 3 May 2011, http://www.reuters.com/article/2011/05/03/kenya-risks-idUSRISKKE20110503

v. "MP wants Govt to explain officer's killing", by Lucas Barasa, The Nation, 3 May 2011, http://www.nation.co.ke/News/politics/-/1064/1155618/-/7rh221/-/

vi. "Muthaura Finally Goes On Leave", Nairobi Star, 2 May 2011, http://allafrica.com/stories/201105030102.html

vii. "Frustration Over Limits of ICC Charges", by Robbie Corey-Boulet, IPS, 29 April 2011, http://www.ipsnews.net/news.asp?idnews=55433

viii. "Wrestling Over ICC's Role in Africa", by Robbie Corey-Boulet, IPS, 14 April 2011, http://www.ipsnews.net/news.asp?idnews=55254

ix. "Experts discuss ways of ending criminal impunity in Kenya", Special Report by Xinhua Correspondent Chrispinus Omar, Coast Week (Kenya), http://www.coastweek.com/3419_impunity.htm

x. "Kenya Transitional Justice Brief", International Center for Transitional Justice, 11 May 2011, http://ictj.org/publication/kenya-transitional-justice-brief-vol-1-no-1

V. AUDIOVISUAL RESOURCES

i. "Ask the Court", ICC Programme, 15 April 2011, http://www.fileserver.icccpi.info/video/Ask_the_court_Kenya_110415.mp4
http://www.youtube.com/watch?v=A8wUvVg4OqQ

ii. ''In the Courtroom': Status conferences in the cases of The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali and The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC Public Affairs Unit, 19 April 2011, http://www.youtube.com/watch?v=8IVpO4nL0Bg http://www.youtube.com/watch?v=yPqa1-deqjQ&feature=relmfu

iii. "Ocampo Loses Evidence Application," KenyaCitizenTV, 20 April 2011, http://www.youtube.com/watch?v=MOb6ubfA1t4

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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