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Analyst: After ICC Ruling, Kenya Must Accept Hague Trials

Back row, former Kenyan Education Minister Ruto, left, former Kenyan Minister of Industrialization Kosgey, center, and Kenyan broadcaster Sang, right, appear at the International Criminal Court in The Hague, Netherlands, April 7, 2011

A legal analyst says Kenya has no choice but to continue with the International Criminal Court trials now that judges have rejected the country’s attempt to stop proceedings at The Hague.

Late Monday, judges at the International Criminal Court dismissed Kenya’s application challenging the admissibility of two cases against Kenyan citizens at The Hague. The ruling is the latest blow to Kenyan authorities, who have for months undertaken efforts to stall or end the proceedings.

Now the executive director of the International Commission of Jurists-Kenya, George Kegoro, says the government is out of options.

“The Kenyan government doesn’t have any more options unless it were to appeal the decision of the pre-trial chamber. The practical possibilities is that the case is just going to go to the next stage which is the confirmation hearings which start in the second week of September and go into October,” he said.

The court has brought charges against six Kenyans it believes to be the architects of the country’s post-election chaos in 2007 and 2008.

Though initially popular among Kenya’s public and leadership, the ICC investigation lost support once the suspects, including presidential hopefuls and key members of government, were announced last year.

Government's argument

The government now argues that judicial reforms being implemented under the country’s new constitution will allow Kenya to try the suspects locally. Some politicians have even blasted the ICC trials as a violation of Kenya’s sovereignty.

Such arguments, however, were rejected by ICC judges, who said Kenya must provide concrete evidence it is trying the ICC suspects to end the proceedings at The Hague.

Challenging admissibility

According to Kegoro, such trials have yet to materialize, giving the government little with which to convince the court.

“In our view we found it difficult to find any evidence of national proceedings in Kenya. It seems there was a misunderstanding on the part of the Kenya government," he said. "The Kenya government takes the reform processes that are going on as being equivalent to a ground to block the admissibility of the case. The court is saying 'It is not enough to have that. We need to have evidence of an actual investigation taking place for the courts to consider the possibility of challenging admissibility.'”

While the government can still appeal the ruling, it is unlikely to change the minds of the judges. According to Kegoro admissibility may only be challenged once during a trial, meaning Kenya could not challenge the court in the event local trials are established.

“The Kenyan government has lost its chance, the process now is going to continue,” he said.

On Tuesday, Kenya’s Attorney General Amos Wako revealed the government would appeal the decision. In a statement Wako said Kenya would likely be able to present more evidence of judicial reforms by the time the appeal is heard.

Some 1,300 people were killed and 300,000 displaced in ethnic violence following Kenya’s disputed 2007 presidential poll. Six prominent Kenyans, including Finance Minister Uhuru Kenyatta, former higher education minister William Ruto and former police chief Hussein Ali, face charges of financing and organizing the violence.