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17 Mar 2011
Dear all,

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

On 8 March 2011, Judges of Pre-Trial Chamber II of the International Criminal Court (ICC) issued summonses to appear for six individuals for their alleged roles in the 2007-2008 Kenyan post-election violence.

This message includes related media statements (I) as well as relevant news and opinions (II).

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




1. "Gabon/Nigeria/South Africa: Reconsider Support for Deferral of ICC Kenya Investigation", Civil Society Letter to the Ministries of Foreign Affairs of African ICC States Parties on the UN Security Council, 2 March 2011,

"We, the undersigned organizations, urge your government to reconsider support for a United Nations Security Council deferral of investigations and prosecutions of the International Criminal Court (ICC) in Kenya under article 16 of the Rome Statute. Any deferral under article 16 would be contrary to the law and would further delay justice for the victims of crimes committed during the violence that followed Kenya's 2007 polls.

As you are aware, the Assembly of Heads of State and Government of the African Union (AU) adopted a decision during the January 2011 AU summit supporting and endorsing Kenya's request for a deferral....

The Assembly decision cites as a basis for the deferral the need to 'allow for a National Mechanism to investigate and prosecute the cases under a reformed Judiciary provided for in the new constitutional dispensation, in line with the principle of complementarity...' But complementarity-a core Rome Statute principle establishing the ICC as a court of last resort that steps in only where national authorities are unwilling or unable-is distinct from an article 16 deferral....

A deferral of an ICC investigation risks legitimizing political interference with the work of a judicial institution and could set a dangerous precedent for accused in other situations. Therefore, use of article 16 should be extremely rare.

There is no indication that the ICC's work in Kenya poses a threat to international peace and security....Therefore, there is no merit in the suggestion that a deferral of the Kenya investigation would act to 'prevent the resumption of conflict and violence' as is alleged in the AU's recent decision.

Indeed, Kenyan victims who made submissions to the ICC regarding the court's initial decision to authorize an investigation overwhelmingly supported the court's intervention....

It should be recalled, however, that inaction by the Kenyan authorities to bring those responsible for the post-election violence to account formed the basis for the ICC's decision to authorize its prosecutor to begin an investigation....National trials should be encouraged in order to widen accountability, but the judicial and police reforms necessary to ensure fair, credible, and effective investigation and prosecution of the crimes committed in Kenya will take time to implement....

Although some in the Kenyan government have sought to portray the ICC's investigations as unpopular and divisive, support for the ICC, in fact, remains high in Kenya....

Recognizing your commitment to the fight against impunity, we urge your government as an African member of the ICC and the United Nations Security Council to reconsider the merit of a deferral of the ICC's investigations and prosecutions in Kenya."

2. "Kenya must comply with ICC summons on post-election violence", Amnesty International, 10 March 2011,

"Amnesty International has urged the Kenyan authorities to ensure that government officials suspected of being implicated in post-election violence in 2008 comply with a summons from the International Criminal Court (ICC).

The ICC yesterday issued two summonses to six Kenyans including the Deputy Prime Minister and the former chief of police, but the Kenyan government is trying to get the case deferred.

'Those allegedly responsible for human rights violations in Kenya in 2008 cannot continue to dodge justice,' said Erwin van der Borght, Amnesty International's Africa director.

'The Kenyan authorities must cooperate with the ICC, rather than persisting with attempts to have the trials in Kenya.'...

However, the Kenyan government is calling on the UN Security Council to request that the ICC defers the case.

'Any Security Council decision to defer the ICC's investigation would constitute political interference with the justice process and could result in impunity,' said Erwin van der Borght.

'The Kenyan authorities must comply with the summons of the six named suspects, as well as ensuring that other individuals implicated in human rights violations are brought to justice.'..."

3. "Kenya Still a Long Way from Local Justice for Post Election Violence," Op-ed by George Kegoro, ICJ-Kenya, 8 March 2011,

"A local justice mechanism, previously rejected by the government and the National Assembly, is suddenly the preferred means for bringing justice in relation to the post election violence that occurred in Kenya in 2007....While, in principle, a local justice mechanism would desirable and while, eventually, the country must consider the establishment of such a mechanism, there are at least five reasons why it is not possible, for the time being, to put in place a credible local justice mechanism. In the circumstances, there is little chance for now of demonstrating to the ICC that Kenya can meet its complimentarity obligations as expected under the Rome Statute.

First, political leadership on Kenya's relationship with the ICC has been particularly poor and constitutes the single most important reason why it would be difficult to convince the ICC and the international community, that Kenya has the capacity to conduct genuine local prosecutions of the post election violence suspects....

Secondly, while a local justice mechanism will heavily rely on a reformed Judiciary, judicial reforms are only just getting underway....Also, the appointment of the new Chief Justice, an aspect of judicial reforms which should not have been too contentious, has got off to a most controversial start....

Thirdly, the country is discussing and has not settled on the appointment of the Director of Public Prosecutions, which is tied with the controversy surrounding the various constitutional offices that the President tried to make nominations for....

Fourth, a sound witness protection system is needed if Kenya is to undertake genuine local prosecutions. The Witness Protection Act, passed in 2006, had to be amended even before it was implemented. Amendments to the Act have since been made and came into force in June 2010. If implemented, the Act provides a reasonable basis for the protection of witnesses. However, the Act has missed funding since its establishment, and does not exist beyond the paper on which it is written....

Finally, there can be no local justice without sufficient reforms to the police force to support the requisite investigations....

So far, two cases arising from the post election violence have been presented to court....Both prosecutions ended in acquittals and each of them is a study in prosecution frailties of different kinds."

4. "Ocampo Six are no longer suspects but Indictees", ICPC, 10 March 2011,

"The issuance of summons by the pre trial chamber to the six Kenyan individuals means that they are no longer suspects but they have technically become indictee although the Pre-Trial Chamber lawyers diplomatically asserted that though they are not accused persons they have been availed the 'rights of accused persons'. What this means is that they and President Omar al Bashir are one and the same thing in the eyes of the court the only difference is that the latter has an arrest warrant.

Their appearance before the ICC in answer to the summons cannot be likened to suspects appearing in police station as carelessly indicated by the government spokesman Dr Alfred Mutua but they are appearing before judges where by the charges will be read to them and they will be expected to take a plea. In addition to this they will be expected to observe the conditions set up by the Pre-Trial Chamber II judges....

The vice president shuttle diplomacy to members of the UN Security Council is insensible as it is insensitive to the public. It is not meant to achieve anything for the state but to shield the six individuals from criminal liability....

Continued entrenchment of impunity in the country is what can result to instability instead as it gives a free pass to all to get away with crimes. Kenya does not qualify as a threat to international peace which is the basis to which the UNSC can seek a deferral...."



Note: These documents have been produced by the ICC. The CICC Secretariat distributes them as part of its mandate to keep member organizations and individuals informed about developments related to the ICC. The documents do not reflect the views of the CICC as a whole or its individual members.

1. "ICC launches Kenyan-wide TV series Ask the Court", ICC Press Office, 10 March 2011, and media/press releases/pr638

"Today, 10 March 2011, the Outreach Unit of the International Criminal Court (ICC) is launching the Kenyan TV series Ask the Court.

Ask the Court answers the most frequently asked questions raised by the Kenyan population on the Court's mandate and its work. The TV series has been designed to foster interaction between the Court and the national population, in particular with those most affected by the post-election violence. It explains judicial developments as they unfold, clarifies the next steps in the Court's procedures, and enhances transparency and understanding of ICC proceedings.

Today's episode is the first in a series of programmes that will follow the developments of the Court's judicial procedures in the Kenya situation. It explains Pre-Trial Chamber II's recent decision to issue summonses to appear for six suspects and provides further explanations on the judicial steps following this decision....

The programme will be further translated into four local languages and broadcast on 13 local radio stations. Each episode will also be available on the ICC's YouTube channel.

Other TV and local radio stations are also encouraged to broadcast the programmes; no further permission is required."

2. "Prosecutor briefs and takes questions from Kenyan journalists." OTP weekly briefing, Issue #78, 8-14 March 2011,

"Prosecutor Moreno-Ocampo briefed approximately 30 Kenyan journalists based in Nairobi, via video link from The Hague, on the summonses to appear before the Court recently issued by Pre-Trial Chamber II. The Prosecutor said: "The ICC is providing Kenya the right forum to discuss the past violence and the way to avoid its repetition. Victims can be heard and individuals under suspicion will have the opportunity to clarify their role. In the past I have said Kenya is an example. My words were not well understood. Today, when we are witnessing violence in Libya or Ivory Coast, we can make a comparison: there is no violence in Kenya. We are witnessing an important national debate in a peaceful process, where important discussions are being held. I welcome the decision of the 6 individuals to respect the law, take responsibility and come to The Hague. (...) Elderly from different communities have a crucial role to play. We need their wisdom in uniting the country."

The Prosecutor also informed the assembled journalists that the OTP would soon send a letter to the Kenyan Government, asking them about the current position and functions of one of the suspects, Francis Muthaura. If he is the superior of Kenyan police, Prosecution cannot interview witnesses in Kenya. The Prosecutor recalled the conditions established by the Pre-Trial Chamber, in violation of which the suspects would be subject to arrest, and warned to not protect the interests of any of the suspects, stressing that victims in Kenya should not be threatened or intimidated. The Prosecutor invited the media and the public to send him any relevant information about threats against victims.

Finally, the Prosecutor noted his intention to appeal aspects of the Pre-Trial Chamber's 8 March 2011 decision concerning the role of the police and the crime of forced circumcision. The filing seeking leave to appeal was submitted the same day...."


1. "Press Statement by Hon. Amos Wako, Hon. Prof. George Saitoti and Hon. Mutula Kilonzo on ICC summons," Statement, Office of the Government spokesperson, Kenya, 9 March 2011,

"The International Criminal Court has issued summons for 6 Kenyans to appear before The Pre - Trial Chamber of International Criminal Court on 7th April 2011 to answer to charges under the Rome Statute.

The Pre - Trial Chamber will hold a hearing to confirm the charges on which the prosecutor intends to seek trial. The Rome Statute gives the person for whom the summons have been issued and the state which has jurisdiction over such persons to challenge admissibility of the case or the jurisdiction of the Court. We would like to state as follows:

1. The Government will challenge the admissibility of the cases as well the jurisdiction of the court.

2. It should be noted that according to the Rome Statute indictment will only be issued after the charges have been confirmed by the Pre -Trial Chamber after the said hearing...."


1. "Prosecutor warns Kenyans against disobeying court" by Tom Odula, Washington Post/AP, 14 March 2011,
2. "Ocampo: Kenya's civil service chief may interfere with witnesses" by Bernard Namunane, Africa Review, 14 March 2011,
3. "Court declines to block Ocampo summonses" by Rob Jillo, Capital FM, 14 March 2011,
4. "Ocampo wants Uhuru, Muthaura to step aside" by Caroline Gakii, KBC, 14 March 2011,
5. "Uhuru and company should rejoice after ICC summonses" by Otuma Ongalo, The Standard,14 March 2011,
6. "Petition to UN Security Council regarding Kenyan cases at the ICC" by Anyang Nyongo, Capital FM, 14 March 2011,
7. "Kibaki sees political calculus in ICC trials" by Fred Oluoch, The East African, 14 March 2011,
8. "ICC drama: Will justice only be at the cost of peace?" by L. Muthoni Wanyeki, The East African, 14 March 2011,
9. "Revealed: Details of Kenya's case to UN" Juma Kwayera, The Standard, 14 March 2011,
10. "Kenyan Party Seeks Rejection of Request for ICC Case Deferral, Nation Says" by Eric Ombok, Bloomberg, 14 March 2011,
11. "Mwakwere denies split over ICC", Daily Nation, 13 March 2011,
12. "Kenya: Reject Plea for ICC Deferral, ODM Asks UN" by Peter Leftie and Walter Menya, Daily Nation/AllAfrica, 13 March 2011,
13. "Kenya's president & PM in disagreement over ICC deferral ahead of UNSC meeting", Sudan Tribune, 13 March 2011,,38276
14. "Fresh bid to frustrate ICC Kenya case", Capital FM, 12 March 2011,
15. "Kenya's letter to ICC President", Daily Nation, 12 march 2011,
16. "Kenya: Deferral Bid Aims to Protect Certain Figures" by Kwendo Opanga, Daily Nation, 12 March 2011,
17. "UN Security Council to meet on Kenya ICC case" by Anthony Kagiri, AFP/Capital FM, Capital FM, 12 March 2011,
18. "Kenya wants US, UK to abstain from ICC vote" by Walter Menya, Daily Nation, 12 March 2011,
19. "Kenya: Why Government Issued a Statement Challenging the ICC's Jurisdiction" by Alfred Mutua, AllAfrica/Daily Nation, 12 March 2011,
20. "Slim hope as Kenya pushes for ICC deferral" by Peter Leftie, Daily Nation, 12 March 2011,
21. "State enlists Queen's Counsel in Hague cases", Daily Nation, 12 March 2011,
22. "Conditions for Ocampo six can be amended" by Caroline Gakii, KBC, 11 March 2011,
23. "Kenya: Citizens Split Over ICC Summonses" by Ramadhan Rajab, Nairobi Star, 11 March 2011,
24. "No easy way out of The Hague process", The Standard, 11 March 2011,
25. "Plan to try violence cases in Kenya 'sinister': PM" by James Macharia, Reuters, 11 March 2011,
26. "Kenya will not relent on ICC deferral route" by Wambui Ndonga, Capital FM, 11 March 2011,
27. "ODM not party to challenging ICC cases" by Laban Wanambisi, Capital FM, 10 March 2011,
28. "Kenyan Government Says ICC Summonses Send Signal Country a Failed State" by Sarah McGregor, Bloomberg, 10 March 2011,
29. "Kenya Coalition partners lock horns over cases" by Dave Opiyo and Lucas Barasa, Daily Nation, 10 March 2011,
30. "Kenya fails to win US backing on poll trials", Daily Nation, 10 March 2011,
31. "PNU says no one will quit over ICC" by Anthony Kagiri, Capital FM, 10 March 2011,
32. "ICC: Next steps on Ocampo Six" by Oliver Mathenge, Daily Nation, 10 March 2011,
33. "ICC says stopping case unfeasible" by Bernard Momanyi, Capital FM, 10 March 2011,
34. "Suspects to appear as 'free men'", Daily Nation, 10 March 2011,
35. "State, MPs insist ICC suspects won't step aside", The Standard, 10 March 2011,
36. "Government bids on ICC at odds" by Sarah Wambui, Capital FM, 10 March 2011,
37. "Hague: Bite the bullet and submit to justice", Daily Nation, 10 March 2011,
38. "Kenya to challenge ICC case over post-poll violence", BBC News, 9 March 2011,
39. "Kenya PM backs ICC move against politicians" by William Wallis and Katrina Manson, FT, 10 March 2011,
40. "Steps ICC court will take before trial" by Ben Agina, The Standard, 10 March 2011,
41. "6 Kenyans facing crimes against humanity charges say they will co-operate with int'l court" Tom Odula , Canadian Press, 10 March 2011,
42. "Kibaki, Raila hold talks over ICC judges' move" by Athman Amran and Martin Mutua, The Standard, 10 March 2011,
43. "ICC: Six plead innocence but pledge compliance", The Standard, 10 March 2011,
44. "Kenya: Ocampo Six to Go to Hague in April", Nairobi Star (Nairobi)/AllAfrica, 10 March 2011,
45. "Kenya seeks UN help in crimes against humanity case", Mail and Guardian Online, 9 March 2011,
46. "Ocampo Six accept Hague summons" by Jillo Kadida and Jacob Ng'Etich, Daily Nation, 9 March 2011,
47. "Sang headed to ICC but not without a fight" by Rob Jillo, Capital FM, 9 March 2011,
48. "Muthaura says he's ready for ICC" by Laban Wanambisi, Capital FM, 9 March 2011,’s-ready-for-ICC-11989.html
49. "Kalonzo meets Ban as ICC summons issued" by Anthony Kagiri, Capital FM, 9 March 2011,
50. "Kalonzo meets UN Security Council President" by Martin Mutua, The Standard, 9 March 2011,
51. "Attorney of Suspended Kenyan Minister: ICC Has No Case Against His Client" by Peter Clottey, VOA News, 9 March 2011,
52. "ICC: Kalonzo shuttle diplomacy hits New York", Daily Nation, 8 March 2011,
53. "Kibaki steps up fights as ICC ruling draws closer" by Martin Mutua and Ally Jamah, The Standard, 8 March 2011,
54. "UN security council gets Kenya ICC plea", Capital FM, 8 March 2011,
55. "VP, team begin ICC deferral offensive" by David Ochami and Beauttah Omanga, The Standard, 7 March 2011,, team begin ICC deferral offensive
56. "VP hits road in new anti-ICC bid" by Lucas Barasa, Daily Nation, 6 March 2011,
57. "Ex-Electoral Commissioner Kigano Accredited to Hague" by Nzau Musau, Nairobi Star, 4 March 2011,
58. "Kibaki names envoys to push ICC deferral bid" by Bernard Namunane, Daily Nation, 4 March 2011,
59. "The Hague deferral not in UN council's list of agenda" by Martin Mutua, The Standard, 3 March 2011, Hague deferral not in UN council’s list of agenda
60. "High stakes game as date with ICC draws near", by Makau Mutua, Daily Nation, 26 February 2011,
61. "Ocampo entry rocked the coalition boat", by Lillian Aluanga, The Standard, 26 February 2011,
62. "ICC: State responds to civil society with two-million signature drive", by Cyrus Ombati, The Standard, 28 February 2011
63. "Kenya: Bid to Defer Hague Trials Suffers Setback", by Walter Menya, Daily Nation/AllAfrica, 28 February 2011,
64. "Civil society to lobby for veto on ICC cases deferral quest", by Edwin Cheserek, The Standard, 2 March 2011,
65. "States asked to reject calls for ICC deferrals", Daily Nation, 2 March 2011,

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