[JURIST] Kenyan Attorney General Amos Wako said Tuesday that his country would appeal a refusal by the
International Criminal Court (ICC) [official website] to transfer two cases stemming from post-election violence to Kenyan courts. The ICC announced [press release] Monday that they were denying [decision, PDF] Kenya’s request for the cases to be transferred, prompting Kenya to file a reply [text, PDF] Tuesday. Kenya initially asked that the six defendants [JURIST report], called the “Ocampo Six,” be tried in Kenya, arguing the ICC should only intervene in situations where the nation is unwilling or unable to investigate and prosecute, citing article 19(b) of the Rome Statute [text]. The Ocampo Six are facing trial [JURIST reports] for allegedly inciting violence during and after the December 2007 Kenyan elections [JURIST news archive]. The ICC claimed jurisdiction due to doubts that Kenya was willing to fully investigate the matter. In response, the Kenyan government’s reply requested that the ICC rule on two other motions they have filed: one requesting a leave for reply [text, PDF] and the other a “cooperation” request [text, PDF], asking for assistance with the investigation. The reply argues that the decision should not have been made without ruling on these other two issues:

These are matters of the greatest concern to the Government of Kenya not just because of the significance of cooperation in domestic investigations and proceedings other than those involving the six Suspects. Whether the Prosecutor should, and will, cooperate with the Government of Kenya is critical to the issue of the admissibility of the two cases presently before the ICC that will be further considered on appeal and/or at some later stage if and when there is any further application by any party to return jurisdiction to Kenya. Only by being allowed to reply to the Prosecutor’s grave, but un-evidenced, allegations can the Government of Kenya ensure there is a record before the court of what its present response to those allegations may be, something of great potential importance for the deliberations of the Appeals Chamber and/or the Pre-Trial or Trial Chamber(s) at a later stage.

In his press release [text], Wako denounced the ICC reaching the decision without an oral argument and stated that an appeal is forthcoming. Kenya has five days to file.

The Ocampo Six include several high-ranking members of Kenya’s government, the head of operations at Kass FM [official website] in Nairobi and the son of Kenya’s first president, Jomo Kenyatta [Africa Within backgrounder]. Three of the men are members of the Orange Democratic Movement (ODM) [party website], and the other three are members of the opposing Party for National Unity (PNU). The ODM suspects are charged with fomenting violence against PNU members following the 2007 elections because they believed the election of Kenyan President Mwai Kibaki [official profile] to be rigged. In response, the PNU suspects are charged with the conspiring with the Mungiki criminal organization [Safer Access backgrounder, PDF] to attack members of the ODM party. The ICC summoned the suspects [JURIST report] after determining they would not be charged in Kenya for the alleged crimes. In April, Kenya requested that the ICC dismiss the case [JURIST report], arguing that the government is capable of prosecuting the six men domestically. Lawyers for the Ocampo Six called for the timely release of evidence [JURIST report] against their clients that month as well.