NAIROBI: The International Criminal Court has rejected a move by the National Council of Elders Kenya (NCEK) to file observations in favour of President Uhuru Kenyatta to have the the case against him terminated.
In the ruling, a three judge-bench comprising Presiding Judge Kuniko Ozaki and judges Robert Fremr and Geoffrey Henderson, dismissed the requested intervention by NCEK as neither necessary nor desirable for proper determination of the case.
“In view of the Chamber, the applicant has not established it would provide any further relevant information beyond that which may be raised and submitted by the parties and participants themselves at any stage of the proceedings,” ruled Ms Ozaki.
The NCEK filed an application on October 10 seeking the court’s permission to submit amicus curiae observations in what they said would help the court reach a just determination of the case.
Through their lawyer Peter Njenga Mwangi, NCEKÂ said they wanted to be allowed to explain to the judges the implications of the current proceedings against Mr Kenyatta on efforts of national healing, cohesion and integration between different communities in the country.
“It is in the interests of the Kenyan nation, the region and international community of nations that the healing process currently taking place in Kenya be allowed to continue,” they said.
In-depth knowledge
They also wanted to explain to the judges the impact of continuing the case in spite of the admission by Chief Prosecutor Fatou Bensouda that she did not have enough evidence against Uhuru.
The elders said it was important for the judges to know the historical origins of the 2007-2008 post-election violence and similar conflicts. They also wanted the judges to benefit from their “in-depth knowledge” of the African justice systems and the historical interaction between the different communities.
They also wanted to make observations on the impact of continuing the case on the victims of the violence, saying their expectations had been raised unreasonably.
“The association has over the years worked with the victims of politically-related violence and has continuously tried to reconcile the protagonist communities and to forge national healing, integration and cohesion,” the elders said.
NCEK relied on Rule 103 of the Rules of the court, which gives the judges of the Trial Chamber the discretion to give permission to a state, organisation or person to submit written or oral observations on any issue if they deem it useful in helping them reach a just determination of the case.
The council described itself as a non-political and non-partisan association bringing together all the councils of elders of the 40-plus communities in Kenya.
In their submission, they said their main aim was to promote the unity of all communities in Kenya and provide a forum for peaceful resolution of disputes.
To strengthen their peace credentials, NCEKÂ told the ICC judges they had successfully resolved several disputes between different communities including the resolution of the boundary dispute between Meru and Isiolo counties.
The elders said they were currently involved in resolving a conflict between the Degodia and Garre communities in Mandera and Wajir counties as well as the Turkana and Pokot communities.
They argued that other international justice processes like the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia had allowed third parties to make observations that could help the judges reach the right verdict.
“It is submitted that submissions by the applicant as Amicus Curiae are of great importance, which may assist in guiding the court to reach a just adjudication of this matter,” they said.
Interestingly, the application attracted no opposition from Ms Bensouda.
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