Kenya's Deputy Prime Minister Uhuru Kenyatta and former head of public service Francis Muthaura have asked the International Criminal Court Trial Chamber to delay proceedings against them until their appeals are determined.
The two argue that it would be “contrary to the interests of justice and their fair trial rights and an inefficient use of court resources”, to set a trial date and commence trial proceedings before the Appeals Chamber decides whether or not the ICC has jurisdiction over their case.
“The Defence hereby requests the Trial Chamber to invoke its inherent discretion and exercise its power pursuant to Rule 134(1) of the Rules of Procedure and Evidence to postpone the setting of a trial date until the Appeals Chamber has rendered its decision,” the joint application filed on Wednesday says.
Rule 134(1) says that Prior to the commencement of the trial, the Trial Chamber on its own motion, or at the request of the Prosecutor or the defence, may rule on any issue concerning the conduct of the proceedings.
Mr Kenyatta and Mr Muthaura are accused of crimes against humanity arising out of the 2007/08 post-election violence and filed a joint application on February 14, appealing the decision by the Pre-Trial Chamber 11 that the cases are rightly before the court. The Appeals Chamber is yet to make a determination over the matter.
They tell the judges that proceeding to set a trial date before the ICC's jurisdiction is confirmed may result in “an inefficient use of both court and defence/prosecution resources concerning the conduct of preparations in the coming months".
“The Defence submits that unless the setting of a trial date is postponed, there may be an ‘appearance’ that the issue on appeal has been pre-determined in a manner which rejects the Defence submissions on jurisdiction. Such an appearance may in turn impact upon the integrity and credibility of the institution,” the two say in their application.
Mr Kenyatta and Mr Muthaura have also requested the Appeals Chamber that they be allowed to make an oral submission on the appeal challenging the jurisdiction of the court. Rule 156(3) says that the appeal proceedings shall be in writing unless the Appeals Chamber decides to convene a hearing.
“The Defence submits that although this is a matter within the discretion of the Appeals Chamber an oral hearing is the most effective method of scrutinising the substantive merits of the parties’ submissions. The need to ensure that the matter has been both thoroughly and publicly examined is underscored by the fact that a determination on the issue of jurisdiction may bring these proceedings to an end,” the two say in a separate application
Previously, Prosecutor Luis Moreno-Ocampo has submitted that the Presidency or the Trial Chamber might “deem it to be in the interests of justice” not to commence trial proceedings before the Appeals Chamber makes its final determination.
Mr Kenyatta and Mr Muthaura argue that the appeal challenging the jurisdiction of the court is “based upon an entirely valid and justified series of submissions reflective of the Dissenting Opinion of Judge Hans-Peter Kaul in Pre-Trial Chamber II".
In his dissenting opinion, Judge Kaul stated that the Court lacks jurisdiction in the Kenyan situation. Contrary to the Majority’s findings, he was “not satisfied that the crimes allegedly committed by Mr Muthaura and Mr Kenyatta occurred pursuant to or in furtherance of a policy of an organisation".
Eldoret North MP William Ruto and radio presenter Joshua Sang, who are also facing charges of crimes against humanity, have also lodged similar appeals on jurisdiction.