THE DISSENTING OPINION IN THE KENYA GOVERNMENT’S APPEAL ON ADMISSIBILITY

Judge Nsereko (Appeals Chamber Presiding Judge - Government of Kenya Admissibility Challenge)

Once again Kenya’s rot was brought to the fore with the rejection and throwing out of the Appeal on admissibility, which was aimed at having the case against the six suspects dismissed, and affirming a decision of the Pre-trial Chamber on the admissibility challenge.

Reading the ICC Appeals Chamber’s decision the Presiding Ugandan Judge Daniel David Ntanda Nsereko pointed out that Pre-trial’s chamber’s same person same conduct test was appropriate. He said that the Pre-trial chamber correctly decided that the cases against the suspects were admissible.

The court said that the suspects’ conduct had not been investigated by the national jurisdiction and therefore there was no need to find the case inadmissible.

There is however still a chance for each of the suspects to file their own fresh admissibility challenge, but my ‘palm reader’…… and my more learned and realistic gut feeling tells me that it is bound to be as futile as that of the Government of Kenya.

There was a dissenting opinion by Lithuanian Judge Anita Usacka who pointed out that she regretted that the lower court did not ask for arguments on vital points, such as what exactly constitutes an investigation and what a State must do to prove that it has opened one.

Should this dissenting opinion be construed to mean that the Judge totally faulted both the procedural and substantive actions and decisions of the Pre- Trial Chamber? If the points had been raised – putting into consideration that there is no ICC jurisprudence to date on these points, would it have meant a dismissal of the cases against the case – a victory for the Kenyan Government?

The truth of the matter is that Kenya put up a lousy case at that level and not even a thorough spoon-feeding by the Pre- Trial chamber would have made a difference.

My opinion – in its humblest form – is that the chances by the suspects to successfully put up an admissibility challenge are high considering the lessons so far learnt. The chances are slightly higher than those of the Kenyan Government, but considering the fact that the Government had absolutely no chance of success….you get my drift as to how much of a chance each of the suspects has…..

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