Gender Report Card on the International Criminal ... - YWCA Canada

OTP Situations and Cases
the Pre-Trial and Appeals Chamber decisions,
rejecting the challenge are discussed in greater
detail in the section on Admissibility, below.
The Kenyan Government has argued that
developments in its domestic law, principally
the adoption of a new constitution, now place
it in a better position to try the ICC cases. On
27 August 2010, President Kibaki signed into
law the New Constitution of Kenya, after it was
overwhelmingly approved in a referendum on
4 August 2010. 812 The ceremony on 27 August
marking the adoption of the New Constitution
was attended by President Al’Bashir of Sudan,
against whom there is an outstanding ICC Arrest
Warrant. 813 The New Constitution provides
for significant changes to Kenya’s political
and judicial institutions and is intended to
enable important reforms to the country’s
governmental system. The reforms provided for
under the New Constitution include, amongst
others, the enactment of the Supreme Court
Act, the appointment of Supreme Court Judges,
the appointment of a new Chief Justice, a
Deputy Chief Justice and a Director of Public
Prosecutions, the enactment of the Vetting of
Judges and Magistrates Act, the Judicial Services
Law and the Constitution Implementation Law.
However, according to a June 2011 report by
the Kenya National Dialogue and Reconciliation
(KNDR) Monitoring Project, in practise ‘there
has been limited progress in some areas such
as reforming the police, national cohesion and
reconciliation, and the fight against impunity in
general’. 814
812 ‘Kenya President ratifies new constitution’, BBC News, 27
August 2010, available at , last visited on 27 October 2011.
813 See <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2010, p 102-103.
814 ‘The Kenya National Dialogue and Reconciliation (KNDR)
Monitoring Project’, Review <strong>Report</strong> June 2011, June 2011,
para 3, available at , last visited on 27
October 2011.
ICC investigations have also met with legal
barriers within the Kenyan justice system. The
Office of the Prosecutor had indicated that
they intended to question senior government
officials in Kenya as part of their investigations.
However, the senior government officials invited
to testify by Prosecution investigators objected
to being questioned; as such their statements
are considered involuntary and must be taken
before a judge. The ICC investigations with
respect to these testimonies were therefore
delayed while a process was put in place to
facilitate the interviews. On 5 October 2010,
Lady Justice Rawal of the Kenyan High Court
was appointed to preside over the statementtaking,
815 and on 22 October President
Kibaki officially signed into law the rules and
regulations pertaining to taking statements
from state officials. However, in December
2010, following the Article 58 application by the
Prosecutor, nine persons to be questioned by the
Office of the Prosecutor, allegedly senior security
and government officials, 816 filed with the ICC
Pre-Trial Chamber, objecting to being questioned
and seeking certain assurances from the ICC.
The applicants requested the Pre-Trial Chamber:
(i) to provide assurances that they will not be
prosecuted on the basis of the information they
will voluntarily provide during the requested
interviews; (ii) to issue a declaration that they
cannot be compelled to testify; (iii) to issue an
order suspending the process, pending their
application before the Pre-Trial Chamber; (iv)
to issue a request to the Kenyan authorities
to suspend the evidence-taking pending their
application; and (v) to issue a declaration that
815 ‘Judge Rawal picked to aid Hague probe’, Daily Nation,
5 October 2010, available at , last visited on 27 October
2011.
816 It has been reported that the request to the Pre-Trial
Chamber concerns five provincial commissioners and
four police chiefs. See ‘Judge puts off ICC process again’,
Capital News, 18 January 2011, available at ,
last visited on 27 October 2011.
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