Appeals judges at the International Criminal Court have rejected victim’s request to review its Prosecutor’s decision to ‘cease active investigation’ of the Uhuru Kenyatta case.
The Judges in their decision said, “There are currently no judicial proceedings before the court with respect to the alleged crimes against humanity committed in Nakuru and Naivasha, there exists no reason or information available to the chamber to conclude that an investigation into these alleged crimes have been closed preventing the bringing of any further prosecution.”
The judges further noted that, “It is also recalled in this regard, that in principle the cases against Muthaura, Kenyatta and Ali could be brought back again by the Prosecutor, as no judgement of acquittal was issued with respect to any of the three individuals. Likewise, the prosecutor may also bring any other case against any other individual believed to be criminally responsible for the crimes in Nakuru and Naivasha or the other alleged crimes descried in the Victim’s request.”
Victims in the case had requested the ICC to deny the Prosecution’s application not to review it.
The Victims had also urged the court to invite the Prosecution to submit, within a reasonable time, a response to the entirety of their request.
However, the Prosecution also requested the Chamber to dismiss the Request in limine and if, should the Chamber reject her motion, it should set a timetable for the Prosecution to respond to the allegations in the request on the merits.
The following are the grounds she lays:
(i) the LRV has no standing to make the Request; (ii) the Prosecution has not decided “not to proceed” for the purpose of article 53(2) of the Rome Statute (“Statute”); and (iii) even if, arguendo, the Prosecution had so decided, the Pre-Trial Chamber II (“Chamber”) has no power under article 53(3)(b), or under article 54(1) read together with articles 21(1)(b)-(c), 21(3) and 68, to review that decision.
Uhuru was accused of the crimes against humanity during the 2007-2008 post-poll violence of murder, deportation, rape, persecution and other inhumane acts, but the case proceedings were terminated after the prosecution’s notice to withdraw the charges.
