The defense teams for Deputy Prime Minister Uhuru Muigai Kenyatta and former Head of Public Service Francis Kirimi Muthaura made the request last month, arguing it would be best to wait until an appeal they have filed challenging the ICC’s jurisdiction in their case is determined. The lawyers for Kenyatta and Muthaura argue that if the appeal is determined in their clients’ favor then it could that they will not stand trial,  so there will be no need to set a start date.

The Office of the Prosecutor said in a statement on Wednesday that the Prosecution has no objection in Trial Chamber V delaying setting a trial date as long as the accused made a written commitment to attend trial whenever it will be scheduled. Morris Anyah, responding on behalf of the victims in the case against Kenyatta and Muthaura, said his clients do not oppose the request.

Pre-Trial Chamber II, in a majority decision, determined on January 23, 2012 that Kenyatta and Muthaura should stand trial on five counts of crimes against humanity committed during violence in which more than 1,000 Kenyans were killed between December 2007 and February 2008. The Pre-Trial Chamber also determined that in a separate case former Cabinet Minister William Samoei Ruto and radio journalist Joshua arap Sang should face trial on three counts of crimes against humanity committed during the same period in Kenya.

The ICC Prosecution noted in its Wednesday statement that there have been public demands in Kenya that the trial should be concluded before the Kenyan elections, which are scheduled for March 4, 2013. The Prosecution doubts that is possible even if the trials started immediately, adding it is up to Kenyans to determine who will be a presidential candidate and who will be elected the country’s leader.

These public demands are fuelled in part because Kenyatta and Ruto are aspiring presidential candidates. There has been debate whether they can contest for high office while facing charges of crimes against humanity given the integrity and ethics requirements for leaders set out in Kenya’s constitution. In an effort to settle the question, some citizens have filed a petition before the High Court requesting it to determine the eligibility of the two individuals. The Chief Justice is yet to constitute a three-person bench to hear the matter.

In addition to supporting the postponement of setting a trial date, the Prosecution said it has submitted to the Trial Chamber a request that the identities of its witnesses be revealed to the defense only once their appeal concerning the ICC’s jurisdiction is resolved for security reasons. The Prosecution statement did not refer to any specific cases. However, earlier this year a Ugandan, who was once involved in peace talks between a Ugandan rebel group and the government, claimed at a news conference in the Kenyan capital, Nairobi, that he had managed to track down one of the Prosecution’s anonymous witnesses in the Kenya cases. The Ugandan named the person who he claimed was the anonymous witness but never offered conclusive evidence that the individual was a prosecution witness.

In the Wednesday statement, the Prosecution said it is investigating cases of witness tampering and exposure of perceived witnesses.

Interestingly, lawyers for Ruto and Sang have not filed any requests for Trial Chamber V to delay setting a trial date in their case. The Trial Chamber has called the different legal teams for a meeting next month to determine a trial date, when and how parties are going to disclose their evidence to each other, and other matters.

Trial Chamber V has called the legal teams for meetings at The Hague on June 11 and June 12 to discuss dates for the trials, how and when the prosecution and defense will disclose their evidence, and other issues. These meetings, in the court’s parlance, are called status conferences.

The chamber said in a statement released Wednesday it will meet with the legal teams involved in the first Kenya case on Monday, June 11. This is the case in which former Cabinet Minister William Samoei Ruto and radio journalist Joshua arap Sang, are both charged with three counts of crimes against humanity in connection with the violence that almost tore apart Kenya between December 2007 and February 2008.

The chamber has said it will meet with the legal teams involved in the second Kenya case on Tuesday, June 12. This case involves Deputy Prime Minister Uhuru Muigai Kenyatta and former Public Service Chief and Secretary to the Cabinet, Francis Kirimi Muthaura, both of whom are charged with five counts of crimes against humanity.

The Trial Chamber has given all concerned until May 28 to make written submissions on the agenda the judges have laid out for the meetings in June. They have also asked all involved to make written submission on their interpretation of the law on the mode of individual criminal responsibility and how it applies in the Kenya cases.

Ever since the ICC Presidency formed Trial Chamber V on March 29 this year to handle the Kenya cases, there has been speculation in the country about when the trials of Ruto, Sang, Kenyatta, and Muthaura would begin. Part of the speculation is driven by the fact that Ruto and Kenyatta are aspiring to run for president in elections scheduled for March 4, 2013 and ordinary Kenyans wonder whether the two will campaign for high office while also going to court.

The four face trial after Pre-Trial Chamber II determined on January 23, 2012 that ICC Prosecutor Luis Moreno Ocampo had shown there were substantial grounds to confirm the charges against them.

There has been a fair amount of jostling around by the government of Kenya in the international community since the naming by the International Criminal Court (ICC) Prosecutor in December 2010 of six Kenyans as being the most responsible for the violence that erupted in the country following the disputed Presidential elections in 2007. Kenya wants to prevent its nationals from being subjected to the international criminal justice processes. In essence the Kenyan cases place the complementarity principle – able and willing local courts have first preference to the ICC to investigate and prosecute international crimes committed in their territories – under a rigorous test of its efficacy.

Last month, the East Africa Legislative Assembly passed a motion to allow the East African Court of Justice to request the transfer of the ICC trials of four Kenyans, including Uhuru Kenyatta (Deputy Prime Minister, son of the Kenya’s first President and currently a presidential aspirant) to the Arusha-based East African Court of Justice. The resolution has been met by stiff criticism. The East African Law Society has questioned the practicality of the resolution by the Assembly in the face of the latest draft of the East African Community (EAC) Protocol on extending the jurisdiction of the East African Court of Justice, in which all the EAC members agreed to exclude any reference to human rights adjudication by the court.

This is not the first time that Kenya attempts to exclude the ICC from conducting trials of the four accused persons for crimes related to the post-election violence (PEV). Kenya challenged the admissibility of the cases before the ICC in 2011 citing the capacity of its new constitutional framework to handle these crimes. The Pre-Trial Chamber decided against Kenya’s challenge citing that the only condition to be satisfied by Kenya in order for the cases to be transferred to local courts is the so-called “same person, same conduct rule,” which means that Kenya needs to demonstrate that its criminal justice system is investigating the ICC suspects for the same crimes that the ICC is seized. A cursory analysis of the rulings would conclude that the task before Kenya is then very simple – demonstrate to the ICC that investigations have commenced and assert the doctrine of complementarity. There is however more than meets the eye in this situation. Kenya has indeed undergone a radical constitutional change with credible systems being put in place to ensure good governance and the respect for the rule of law. The issue seems to be the profile of the four individuals who are to face trial in The Hague. Under the circumstances, can Kenya genuinely claim inability to commence investigations on the four accused persons or is it a case of unwillingness so to act?

Being dissatisfied with the ICC ruling, Kenya with the support of the African Union (AU) approached the United Nations Security Council (UNSC), empowered by the ICC Statute, to request the ICC to defer investigations in Kenya for a period of one year. The UNSC did not reply to this request thereby sending the AU back into its drawing room for more resolutions calling for the non-cooperation of all African States Parties with the ICC. There is no doubt that a bitter taste has been left on the Kenyan and AU palates with regards to their interface with the ICC.

A more recent development indirectly linked but noteworthy to the ICC Kenya cases is the expansion of the jurisdiction of the African Court of Justice and Human Rights to conduct individual criminal prosecutions. Justice Ministers and Attorneys General from the African continent are meeting in Addis Ababa, Ethiopia on May 7-11, 2012 to consider adopting a protocol that will confer this type of jurisdiction to the African Court. Civil society organizations working in Africa have written to these experts articulating the deficiencies of the protocol. Expansion of the African Court’s jurisdiction risks “diluting the work of the current African Court on Human and Peoples’ Rights and may undermine human rights protection.” This proposed expansion is at variance with the practice of other regional systems such as the Inter-American Human Rights Court and the European Court of Human Rights both of which have delivered rulings on landmark cases that promote the respect for human rights. Whereas precedent-setting by the African human rights protection system is encouraged, expanding the jurisdiction as proposed is a sure recipe for a complex process, expensive and inevitably delayed justice. A dual approach of adjudicating allegations of human rights violations by African States and jurisdiction for individual criminal responsibility for international crimes defeats the ends of justice. Some commentators find this move to be shrouded in a protectionist agenda by and for African leaders and their criminal allies from facing the music at the ICC. There is little or no confidence that these proposed jurisdictional expansions of regional courts by African leaders is in support of combating impunity for international crimes on the continent.

The fallacy of these attempts to stop the ICC trials in Kenya, is that complementarity, which is the cornerstone of the functioning of the ICC, supports national criminal jurisdictions and not regional courts superimposed with international criminal jurisdiction. Where a matter is before the ICC such as the cases relating to the four Kenyans, the Rome Statute is clear that only a State with jurisdiction to investigate and try persons accused of committing the international crimes can challenge the jurisdiction or admissibility of cases and if successful, it is only to that state that cases can be transferred. There is no support in the existing legal framework of the ICC for cases to be referred, transferred or deferred to regional courts such as the East African Court of Justice or the African Court of Justice and Human Rights.

Kenya’s President is committed to ensuring that the four accused attend local trials following a Report submitted by a Government Working Committee on the ICC. The Committee reports that “provisions set out in …the Constitution…could permit Kenya to have jurisdiction in respect of crimes under international law at the time of the PEV.” The ICC has constituted a Trial Chamber for the Kenyan cases and its Spokesperson clarified that the Chamber is ready to start its work. As the country prepares for its elections, the coming months will tell whether Kenya will successfully challenge the admissibility of the ICC cases after conforming to complementarity requirements or stand back and watch the ICC conduct the trials, while also submitting to periodic requests for the country’s cooperation with the Court.

The Judges and Magistrates Vetting Board determined on Wednesday that the four judges, who between them had more than 120 years’ experience on the bench, should not continue in office because a review of their judgments showed that they were partial to the powerful and rich.

The Board was not concerned with the factual and legal points of a single judgment but “whether the decision had been so extraordinary in itself, and so embedded in a larger pattern of legally-strained decisions, as to point to the existence of a judicial mindset that was so manifestly lacking in fairness and impartiality as to undermine public confidence in the judiciary,” said Sharad Rao, a retired Kenyan prosecutor who is serving as the Board’s chairman.

The nine-member board, which is made up of Kenyan and foreign jurists and other experts, is also mandated to look into allegations of bribe-taking. It said it did not receive any credible evidence to show any of the judges they vetted was on the take.

“Should it happen, then, that an individual judge who is widely accepted as having been “on the take’’ ends up being declared suitable to remain in office, that would be the result of the requirement to base the Board’s determination on evidence, and not on a general perception,” said Rao, reading a detailed statement on behalf of the Board.

The Court of Appeal judges, who learned yesterday that they no longer have jobs, have seven days to ask the board to review its decision. Whether they seek a review or accept what has already been declared, the constitution decrees that the Board’s decision is final and cannot be challenged in court.

The Board was vetting only eight out of the 16 serving Court of Appeal judges because these are the ones who were in office when Kenya’s new constitution came into effect on August 27, 2010. It also vetted a ninth person who was a Court of Appeal judge at the time but now sits at the Supreme Court. The other members of the Court of Appeal were High Court judges on August 27, 2010 and will undergo vetting in the next phase.

The Court of Appeal judges who have been declared unsuitable to continue in office are: Riaga Omollo, Samuel Bosire, Emmanuel Okelo O’Kubasu, and Joseph Nyamu. The Board was unanimous in determining that Bosire and Nyamu should no longer be judges. It was split seven to two in favor of dismissing Omollo. The Board was also split eight to one in favor of O’Kubasu no longer serving as a judge.

The Board cleared the other five Court of Appeal judges. It reached its decisions after, among other things, assessing the decisions of the individual judges, weighing complaints against them, and interviewing the judges individually. The Court of Appeal judges who have been cleared include Philip Tunoi, who is now a Supreme Court judge and Philip Waki, who chaired the Commission of Inquiry into the Post-Election Violence. That commission recommended Kenya set up a credible and independence tribunal to try the suspected masterminds and other perpetrators of the violence that consumed Kenya in early 2008. The commission also recommended that if Kenya is unable to form such a tribunal then the suspected masterminds be tried at the International Criminal Court (ICC).

Until Wednesday, Omollo was the longest serving judge in Kenya, followed by Bosire and O’Kubasu. The Board noted that Omollo had helped improve civil litigation in Kenya and was generally impartial in his judgments so long as the cases did not involve the wealthy or politically powerful. It observed that in the case of O’Kubasu, he had shown courage in his early career, issuing decisions against the powers that be during the time when Kenya was a one-party state. However, O’Kubasu changed later in his career. Before Wednesday’s decision, O’Kubasu was the presiding judge in the case in which the government is appealing against a court order to enforce an arrest warrant against Sudanese President Omar al-Bashir on charges of genocide and crimes against humanity at the ICC. The Board also noted Nyamu’s judicial career followed a trajectory similar to O’Kubasu’s. In the first half of his time on the bench Nyamu was fair and impartial, the Board noted, only to change later find ways to rule in favor of those in power or the politically-connected.

Wednesday’s announcement was the first the Board made in its three-stage process of assessing the suitability for office of all judges and magistrates appointed before August 27, 2010. This is the day Kenya’s new constitution came into effect, abolishing the wide discretionary powers the president had previously enjoyed in making judicial appointments. That was also the day the Treasury’s power over the judiciary’s budget was eliminated.

The work of the Board was one of the justifications a section of the government gave in January last year to lobby for the African Union’s support for a request at the United Nations Security Council to defer for a year the Kenya cases before the ICC. The reasoning was that the constitution decreed a one-year process of sifting the good from the bad in the judiciary and Kenya needed the space to see through that process so as to be able to handle cases stemming from the December 2007 to February 2008 violence that nearly tore up the country. Currently, four prominent Kenyans are awaiting trial before the ICC in relation to that violence during which more than 1,000 people were killed.

The Judges and Magistrates Vetting Board did not formally begin its work until January this year because the legislation to establish it took long to go through the National Assembly and there have been constitutional challenges to its formation and work. The first stage of its work was to examine the judgments, character, and any complaints against nine judges of the Court of Appeal. The Court of Appeal was the highest court before the new constitution came into effect in August 2010. The constitution created a Supreme Court and its judges have been appointed through a two-phase vetting process.

The next stage of the board’s work is to vet 44 High Court judges. This began Thursday. Once it makes its determination on those judges, it will then move to examining 328 magistrates. Aside from Rao, the board has five other Kenyan members and three foreign members. The foreigners are Ghana’s Chief Justice Georgina Theodora Wood; a former South African Constitutional Court judge, Albie Sachs; and veteran Zambian jurist Frederick Mwela Chomba, who has previously served as Supreme Court judge and Attorney General in Zambia as well as Chief Justice of Gambia.

The work of the Judges and Magistrates Vetting Board is the third phase of the transformation of Kenya’s judiciary. The first phase was the enactment of the new constitution that included provisions opening up judicial appointments to a competitive and transparent hiring process and strengthening the judiciary’s administrative and financial independence. The second phase was the appointment of a new Chief Justice, Deputy Chief Justice, and Supreme Court judges through a two-phase vetting process.

The clamour for a clean-up of Kenya’s judiciary predates the Kenya cases at the ICC. The need for judicial transformation was a key issue during the agitation for re-writing the country’s constitution, which had been sporadic between the 1960s and 1980s. It really picked up at the end of the 1980s.

After Kenya gained independence from Britain in 1963, the former colony and former colonial master entered into an agreement to have a small number of British judges appointed to the Kenyan bench as the nascent country built up its own legal profession. In addition to the constitutional provision of security of tenure, the British judges received a pay package equivalent to what they would have earned if they were serving in the United Kingdom. The costs were split between the governments of Kenya and Britain. Kenya paid the British judges what their Kenyan counterparts were paid and Britain then topped that up. This, however, did not embolden the British judges, some of whom served as Chief Justices of Kenya, and many were known to rule in favour of the powers that be.

Ironically, it is under Kenyan Chief Justices that the cleaning of the judiciary started. Their measures, however, were piecemeal and they generally failed to act fully on reports they commissioned. The first effort at a systematic clean-up of the judiciary was in 2003 following the landslide election of Mwai Kibaki as president on a platform to push through wide-ranging reforms. The 2003 clean-up saw half the judges resign or face a tribunal and a third of the magistrates sent home. This was not followed-up nor did it still the continuing agitation for the judiciary to be radically transformed.

The latest judicial clean-up is informed by the experience of 2003. Some judges and lawyers criticized the 2003 purge for not giving the affected judges and magistrates a chance to present their side of the story before the allegations against them were made public.

The Presidency of the ICC announced on Thursday that Christine Van Den Wyngaert of Belgium, Kuniko Ozaki of Japan, and Chile Eboe-Osuji of Nigeria will form Trial Chamber V, which will be responsible for what seems to be shaping up as the most politically explosive case to reach trial at the ICC.

Two of the accused persons, Deputy Prime Minister Uhuru Muigai Kenyatta and former Cabinet Minister William Samoei Ruto, who will appear before the judges are aspiring presidential candidates in Kenya’s general election that is scheduled for March 4, 2013. As Kenyatta and Ruto have sought to consolidate their respective political bases, they, and particularly their allies, have sought to frame the ICC cases as not being about justice for the victims. They have generally claimed that the cases are politically instigated to suit their main rival, Prime Minister Raila Odinga. These arguments also featured when the two individuals made their defense during the pre-trial stage of the cases.

Kenya’s coalition government is divided on all ICC-related matters from whether there should be any cases at the court to whether the two accused should be aspiring to be president. This split forms the sub-text of any government decisions related to its cooperation with the ICC or how to proceed with now-stalled plans to reform the police.

The Presidency of the ICC seemed to be short of experienced judges in the Trial Division of the court and so they called up Judge Van Den Wyngaert to Trial Chamber V from the Pre-Trial Division where she has been assigned to date. Four out of the six judges of the Trial Division were elected to their posts on March 11 this year. The other two are Ozaki and a Kenyan judge.

Van Den Wyngaert is the most experienced of the Trial Chamber V judges, having served as a judge with the ICC since March 2009. She taught international criminal law and related subjects for about two decades in her native Belgium and elsewhere. She served as a judge with the International Criminal Tribunal for the former Yugoslavia between 2003 and 2009 before she was elected to be judge at the ICC.

Ozaki is the second-most experienced judge of Trial Chamber V, having served as an ICC judge since January 2010. Before joining the ICC, she worked for the United Nations Office on Drugs and Crime. Before that, she worked in a variety of capacities for Japan’s Ministries of Foreign Affairs and Justice.

Eboe-Osuji, who is among the new crop of ICC judges elected earlier this month, brings a prosecutor’s worldview to Trial Chamber V. He has served as a prosecutor at the Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda. Before joining the ICC, he was legal advisor to the United Nations High Commissioner for Human Rights.

The immediate assignment for the Trial Chamber V will be to prepare the ground for the trial. This preparatory work is likely to run parallel to a case before the Appeals Chamber where the defendants are challenging whether the crimes committed in Kenya meet the threshold necessary to be adjudicated before the ICC. The Appeals Chamber has already made a significant decision in that case, where it determined that it will not order the trial proceedings to be suspended until it rules on the substantive appeals.

The preparatory work before Trial Chamber V includes setting a schedule for all parties to disclose their evidence and enable all concerned to prepare their cases. The Chamber will also determine who will represent the victims as the previous counsels had been hired for the pre-trial phase only.

The Kenya cases before the ICC stem from the violence that followed the controversial December 2007 presidential polls during which more than 1,000 people were killed. That violence nearly broke up Kenya and so there were persistent demands from victims, activists, and other members of Kenyan society that the suspected perpetrators of the violence should be brought to justice, unlike in the past when political violence was never dealt with.

The ICC authorized Prosecutor Luis Moreno-Ocampo to investigate the Kenya cases in March 2010. This authorization came after almost two years of Kenyan politicians changing their positions on what was the best legal approach to deal with the death and destruction of the post-election violence. They were split on whether to support a credible and independent local tribunal or refer the cases to the ICC. And then there was a third group that advocated reconciliation instead of retribution.

In December 2012, the Prosecutor named the six individuals he believed bore the greatest responsibility for the crimes against humanity committed during the December 2007-February 2008 post-election violence. Two out of three judges of Pre-Trial Chamber II ruled in January this year that only four of them should stand trial.

The Pre-Trial Chamber’s majority decision followed an earlier one by the Appeals Chamber not to grant a request to suspend trial proceedings as an appeal on the ICC’s jurisdiction and related matters is determined. Defense lawyers had asked for the suspension orders as they argue their challenge on whether the ICC should be involved in adjudicating the crimes committed during two months of bloodletting that followed the controversial December 2007 presidential election in Kenya.

The judges of Pre-Trial Chamber II made their decision on Friday, March 9. Judges Ekaterina Trendafilova and Cuno Tarfusser declined to grant leave to appeal to Deputy Prime Minister Uhuru Muigai Kenyatta, former Cabinet Minister William Samoei Ruto, former Secretary to the Cabinet Francis Kirimi Muthaura, and radio journalist Joshua arap Sang.

Kenyatta and Muthaura each face five counts of crimes against humanity. Ruto and Sang each face three counts of crimes against humanity.

The third judge of Pre-Trial Chamber II, Hans-Peter Kaul, did not give an opinion on whether the four accused should be allowed to appeal the decision to send them to trial. Kaul said that he thought since he declined to confirm the charges against the four, “I feel barred, at least in principle, from pronouncing a view,” on the defense applications for leave to appeal.

Ruto and Sang, who are the accused in the first Kenya case, had presented four issues each that they had requested leave to appeal on. The judges found that they had three common issues between them.

The lawyers for both Ruto and Sang argued that the prosecution had failed to conduct proper investigations. They also argued that the judges did not weigh the evidence given by defense and prosecution witnesses in a reasonable and consistent manner. Lastly, they contended that the charges the prosecution framed were not exhaustive because they did not include the identities of other alleged co-perpetrators or specifics about the members of the organization the accused are alleged to have contributed to.

The judges determined that on these points the defense teams’ arguments were a disagreement of legal interpretation rather than raising issues that needed to be appealed. The judges further noted that in some instances the defense lawyers misrepresented the information available to the court. The judges said that they were guided by what, in their view, are two requirements that must be satisfied for a leave to appeal to be granted.

One is “a decision must involve an ‘issue’ that would significantly affect (i) both the “fair” and “expeditious” conduct of the proceedings (ii) or the outcome of the trial.” The second is that “an immediate resolution by the Appeals Chamber is warranted as it may materially advance the proceedings.”

The fourth issue on which Ruto’s lawyers argued was that the judges relied on anonymous evidence to reach their decision without counterbalancing it. The judges also found on this issue that Ruto’s lawyers misrepresented the decision they reached to confirm the charges, and the issue the defense raised was a disagreement on how the judges evaluated the evidence rather than bringing out an issue to appeal on.

The fourth issue on which Sang’s lawyers argued was that the judges failed to set a threshold for the alleged contribution of their client to the crimes he is being charged with. The judges declined to allow an appeal on this issue because, in their view, the argument Sang’s lawyers’ made is based on a misconception and misreading of the judges’ decision to confirm charges against their client.

Lawyers for Kenyatta and Muthaura presented 13 issues that they wanted to be granted leave to appeal. The judges identified one issue that was common between the two separate applications. Both defense teams argued the judges had, while assessing the evidence, reversed the burden of proof from the prosecution to the defense. The judges disagreed and declined to grant their request to appeal this issue.

Kenyatta’s lawyers presented four additional issues. The first was that the prosecution failed to investigate evidence that favors the defense or looks into the reliability of evidence the prosecution received. The judges concluded that in substance Kenyatta’s lawyers had expressed a disagreement with their findings rather than raising an issue that can be appealed.

Another issue raised by Kenyatta’s team is that the judges gave significant weight to prosecution witnesses and failed to give significant weight to defense evidence challenging the credibility of those witnesses. The Kenyan Deputy Prime Minister’s legal team also said another issue they wished leave to appeal on was the allegation of a November 26, 2007 meeting at the official residence of the president during which their client is alleged to have met with members of the Mungiki gang. The third issue they raised was that the judges relied on anonymous witnesses and indirect evidence to establish key meetings took place.

The judges concluded that these issues “do not rise beyond simple expressions of disagreement with the Chamber’s assessment of the evidence before it.”

The judges similarly concluded that the other seven issues Muthaura’s lawyers raised did not constitute grounds for appeal and refused to grant them leave to appeal.

No date for trial in either case has been set.

A three-man bench of the Court of Appeal made the decision in response to a preliminary objection against the Attorney General pursuing the appeal that the Kenya Section of the International Commission of Jurists (ICJ) submitted. ICJ-Kenya had contended that between the time it first argued in November 2010 for the government to be compelled to arrest Sudanese President Omar Ahmad Hassan al-Bashir and when the High Court made its ruling a year later, the Attorney General had been stripped of powers of criminal prosecution and an independent Director of Public Prosecutions had been appointed. Therefore the Attorney General should not be allowed to argue a criminal case, ICJ-Kenya lawyer Wilfred Nderitu argued in December last year (see earlier story here).

Court of Appeal judges Emmanuel O’Kubasu, Erastus Githinji, and Onyango Otieno disagreed in their decision issued on February 17, saying that the case before them is neither a civil nor a criminal case because the question before the court is about enforcement of a court order.

“In view of the foregoing, we are satisfied that the Attorney General is a proper party to these proceedings and we accordingly find no merit in the preliminary objection,” the judges said in their ruling.

ICJ-Kenya had raised the preliminary objection in December when the appeal case first came up for hearing. The Court of Appeal said it would issue its decision at the end of January but was unable to do so because the judges went to the port of city of Mombasa to adjudicate other appeals there.

No date has been set for when the judges will continue with the case.

When they next sit they will be expected to hear arguments on the Attorney General’s application for a stay against the enforcement of the International Criminal Court (ICC) arrest warrant the High Court issued November last year until the main appeal is heard and determined. In December, the Attorney General had applied for interim orders to be issued while the judges determined the preliminary objection. The judges rejected that application.

For now, the High Court’s order to the government to arrest al-Bashir if he visits Kenya still stands.

Nderitu told ICC Kenya Monitor he intends to appeal against the Court of Appeal’s dismissal of his preliminary objection before the Supreme Court, the country’s highest court.

Furthermore, almost half of those polled believe that nothing will happen if either individual is barred from contesting the presidential poll, expected by March 2013 at the latest.

This is significant because supporters of Deputy Prime Minister Kenyatta and former Cabinet Minister Ruto are passionate, sometimes bordering on the fanatical, which has raised fears of negative reactions during the ICC process. Also, political leaders supporting the two men have sought to emphasize reconciliation over retribution whenever questions are raised about how to deal with the violence that engulfed Kenya for two months after the December 2007 poll. The political leaders generally take the line that there is no need to reopen old wounds, suggesting some violence may occur if retribution is followed instead of reconciliation.

The Ipsos Synovate poll on the presidential ambitions of Kenyatta and Ruto was released on Monday but was conducted at the same time as an earlier one that looked into people’s views on the ICC ruling to confirm charges against Kenyatta, Ruto, and two others on several counts of crimes against humanity. Ipsos Synovate did not release this section of the poll because of a High Court of Kenya ban on debate on whether Kenyatta and Ruto should be presidential aspirants. The High Court, which imposed the ban on February 2, lifted it on February 17.

Ipsos Synovate found that 48 percent of Kenyans support Kenyatta vying for the presidency despite his case before the ICC. On the opposite end, 46 percent of Kenyans do not believe Kenyatta should vie for the presidency now that the court has ruled he should stand trial. The remainder either do not know or did not respond to the question.

For Ruto, opinion is equally divided. Ipsos Synovate found that 47 percent support his presidential bid, while another 47 percent opposed it. The remainder either did not know or did not respond to the question.

When asked what would occur if Kenyatta was barred from running for president, 45 percent of the respondents said nothing would happen. Almost a third, or 28 percent, said that Kenyatta’s supporters would cause violence due to incitement, and nine percent said that he would have to accept the decision, according to the poll.

A slightly higher number – 47 percent – thought nothing will happen if Ruto is barred from contesting for Kenya’s presidency, according to the poll. Again, almost a third, or 29 percent, said that Ruto’s supporters would cause violence due to incitement, and eight percent said that he would have to accept the decision.

Notable is that Prime Minister Raila Odinga still leads a presidential contest if Kenyatta and Ruto do not participate, according to the poll. Odinga has the support of 34 percent of the respondents and his nearest rival is Vice President Kalonzo Musyoka with 22 percent.

This is significant because it means Kenyatta’s and Ruto’s support base is up for grabs in a scenario where neither man stands for presidency. This is explained by the numbers in the same poll when it takes into account a Kenyatta and Ruto candidacy.

In such a scenario Odinga remains the front runner, with 31 percent support. Kenyatta comes in second, with 24 percent, followed by Musyoka (10 percent) and Ruto (six percent). Once the two ICC accused persons are removed from the scenario, Musyoka’s support rises by 12 percentage points, but he does not gain all the support enjoyed by Kenyatta and Ruto, even though the vice president has been in a loose alliance with the two men.

Equally significant is that in a scenario where Kenyatta and Ruto are not presidential candidates, there are 17 percent of the respondents who say they are undecided, representing a potentially huge swing block.

In the case of Kenyatta and Ruto standing as presidential candidates, the undecided group is 15 percent of the respondents. Therefore, either way, the presidential field is far from clear. No presidential aspirant has secured the nomination of their political party so far, keeping the electoral field open.

The Ipsos Synovate poll is based on telephone interviews with 1,523 respondents conducted between January 27 and February 1, 2012. The margin of error is plus or minus 2.5 percent. The company funded the poll.

The full results of the poll are available here.

In the first opinion poll to be released since ICC pre-trial judges made a 2-1 decision to send the four to trial, Ipsos Synovate found that 60 percent of Kenyans are either very satisfied or somewhat satisfied with the judges’ ruling. The majority of these respondents said they are satisfied with the judges’ decisions because they believe justice will finally be done.

As would be expected when the judges announced their decision on January 23, some of the accused criticized it. Vice President Kalonzo Musyoka was among politicians allied to some of the accused to lead a chorus against the decision, suggesting it was detrimental to Kenya’s image. Attorney General Githu Muigai, under instruction from President Mwai Kibaki, has formed a team made of foreign and Kenyan lawyers to advise the government on its options in the cases, despite the ICC pre-trial judges stating that the four prominent people are being charged in their individual capacities.

Of the respondents who said they were satisfied with the ICC decisions, 65 percent of them said it was because they believe justice will finally be done. This was followed by 19 percent saying that ICC decisions are generally satisfactory. They were followed by six percent who believe there is a high likelihood that those whose cases were confirmed were responsible for the post-election violence.

“The ICC is probably viewed as an independent court that is able to deliver justice to both the accused and victims of the post-election violence,” said Victor Rateng, Project Manager of the Opinion Polls for Ipsos Synovate.

Something significant in the Ipsos Synovate opinion poll released on Monday is the high level of satisfaction with the latest ICC decision in Eastern Province - at 59 percent. One of the accused, former Public Service chief, Francis Kirimi Muthaura, is a native of Eastern Province. In previous opinion polls on the public’s views on the ICC process, Eastern Province has registered declining support for the ICC process since December 2010 when ICC Prosecutor Luis Moreno-Ocampo named Muthaura was a possible suspect.

According to previous Ipsos Synovate polls on the subject, opposition to the ICC process had risen in Eastern Province to 53 percent in October 2011 and stagnated at that level in December 2011. This is up from 39 percent of respondents opposing the ICC process in December 2010. Two months before that, when no potential suspect had been named, support for the ICC process in Eastern Province stood at 71 percent in October 2010, according to a past Ipsos Synovate poll.

The latest poll also shows that opinion in the Rift Valley Province is split right in the middle with 50 percent of the respondents expressing some form of satisfaction with the court’s decision, while the other half is not. Two of the accused in the Kenya cases are from the Rift Valley - former Cabinet minister William Samoei Ruto and radio presenter Joshua arap Sang. The pre-trial judges declined to confirm the charges against a third person, former Cabinet minister Henry Kiprono Kosgey, who is one of the longest serving members of parliament from the Rift Valley.

“Rift Valley is vast and not exclusively occupied by a particular ethnic community, for this reason, it may not necessarily be in full support of or against the ICC process,” said Rateng. “Also, with the dropping of charges against Tinderet MP (member of parliament) Henry Kosgey, it is probably an indication that the process is fairer than they previously had been made to believe and that the other two from the region may also be acquitted at the end of the day,”

Just like Eastern Province, the Rift Valley Province has shown in the past a similar increase in opposition to the ICC process. In December 2010, opposition to the ICC process in the Rift Valley was 51 percent, rising to 63 percent in June 2011, according to past Ipsos Synovate polls on the subject. This is the period during which the ICC prosecutor named six suspects and the pre-trial process began. It then decreased to 51 percent in October 2011, only to rise to 60 percent in December 2011. Before any suspects were named, 61 percent of respondents supported the ICC process in October 2010, according to past Ipsos Synovate polls.

Another other major finding of this week’s opinion poll is that 69 percent of Kenyans believe that there will be no violence during the next general elections. The poll also found that the ICC decision has not had an impact on the presidential race with the percentages for different aspirants reflecting only minor changes. Prime Minister Raila Odinga remains the top contender with 31 percent of the respondents saying in February they will vote for him, compared to 32 percent in December last year. His closest rival, Deputy Prime Minister Uhuru Kenyatta got the nod from 24 percent of the respondents in February, up from 22 percent in December 2011.

However, the public also wants Kenyatta to resign his post of deputy prime minister. Sixty-two percent said that they believe he should resign because he is facing trial at the ICC. Kenyatta already resigned his Finance portfolio on January 26. Muthaura resigned his position as Secretary to the Cabinet, Head of Public Service, and Permanent Secretary to the Presidency on the same day as Kenyatta. Eighty percent of the respondents in the poll said they supported their resignations.

The Ipsos Synovate funded the poll, which is based on telephone interviews with 1,523 respondents conducted between January 27 and February 1. The margin of error is plus or minus 2.5 percent.

Mr. Ocampo praised the fact that there has been “no violence” in Kenya and that “even the accused persons have responded well.”

“We appreciate that the judges explained the decision in a public session and that there have been no reports of violence as a result,” Mr. Ocampo told journalists in The Hague.

“I find this remarkable,” he added.

The prosecutor explained that the ICC’s investigation is helping to bring peace to Kenya, a country that has witnessed post election violence on more than one occasion.

“ICC intervention is helping Kenya move to a more peaceful future with no costs,” he said, adding that another post election violence in Kenya will mean “more lives lost, more people displaced and not to mention millions in money.”

Yesterday, the pre-trial chamber judges confirmed charges against four of the six suspects named by the prosecutor as being responsible for crimes committed during Kenya’s post election violence in December 2007 and January 2008. Kenya’s Deputy Prime Minister and Minister of Finance Uhuru Kenyatta, Head of Civil Service Francis Muthaura, Former Higher Education Minister William Ruto, and radio journalist Joshua Arap Sang are the persons against whom charges were confirmed yesterday. The judges decided that the prosecutor had not submitted enough evidence to establish that former Police Commissioner Mohammed Hussein Ali and Former Cabinet Minister Henry Kosgey were involved in the commission of crimes against humanity during the post election violence.

In his address to journalists in The Hague today, Mr. Ocampo paid tribute to the six suspects, whose cooperation during the proceedings had made it possible for judges to arrive at their decision.

“We appreciate the fact that the accused appeared voluntarily before the court,” Mr. Ocampo said.

Referencing the fact that the ICC is enforcing international law in Kenya, the prosecutor said that “the suspects’ attitude contributed to that…they came to court voluntarily and without them, this would have been impossible.”

He also praised the Kenyan President Mwai Kibaki who in a statement yesterday after the decision of the judges said that his government will take steps “to solve the problems of victims of violence still displaced.”

The prosecutor said that “victims do not have to wait for a conviction before they receive help. The government of Kenya has a responsibility to help its citizens and to protect them.”

The prosecutor also reacted to the decision of the judges not to confirm charges against Mr. Ali and Mr. Kosgey. He said his office will keep “investigating Kosgey and the activities of the police as well as crimes allegedly committed in Kibera and Kisumu,” where police allegedly shot at civilians. He explained that his office will submit any new evidence about the role of these two individuals to the pre-trial judges for reconsideration.

In response to a question as to whether he has a position on efforts made by Mr. Kenyatta and Mr. Ruto to run for president in Kenya, the prosecutor said that it is an issue for the people of Kenya to decide.

“I have no mandate to interfere in Kenyan issues. Who runs for president in Kenya is a Kenyan issue. It is not my place to interfere,” he explained.

The prosecutor concluded by saying the situation in Kenya, as well as his intervention in Cote d’Ivoire where post election violence also took place in 2010, sends a message to those wanting to use violence for political means that they will be held accountable.

“If you use violence to retain power, you will end in The Hague,” he said.