The International Criminal Court (ICC) Pre-Trial Chamber II decided that the Kenya cases shall go ahead to confirmation hearings. The chamber made the decision because the Kenyan state is yet to begin investigations into any of the six suspects awaiting confirmation of charges hearings at the ICC.

Kenya filed an application challenging the admissibility of cases against Deputy Prime Minister Uhuru Muigai Kenyatta, Head of Public Service Francis Kirimi Muthaura, former Cabinet ministers William Samoei Ruto and Henry Kiprono Kosgey, Postmaster General Mohammed Hussein Ali, and journalist Joshua arap Sang. Charges against the six will be the subject of confirmation hearings in September where the pre-trial chamber will determine whether their cases go to trial.

Kenya argued that there is an ongoing program to turnaround its criminal justice system. The Government’s application asserted that by September this year, the judiciary, police, and prosecution service will be able to credibly handle serious crimes such as the ones Kenyatta, Muthaura, Ruto, Kosgey, Ali, and Sang are alleged to have been involved in.

Kenya made its application on March 31, 2011 using provisions under the Rome Statute that guides the work of the ICC, the world’s first permanent war crimes tribunal. Kenya’s application was followed by a May 13 reply to observations the pre-trial chamber had invited the prosecution and defense lawyers to make.

The Chamber unanimously determined in its decision issued in The Hague, where it sits, Kenya did not show that by the time it filed its application, the police had been investigating any of the six individuals or Kenya’s prosecutor was preparing cases against them.

As part of its written submissions to the chamber, Kenya had said the chamber will be provided with a progress report on the prospective investigations carried out under the new Director of Public Prosecutions and how high up they reach. (A nominee for the new office of Director of Public Prosecutions is awaiting vetting by parliament, but that process is held up because of wrangling among lawmakers.)

“This report will build on the investigation and prosecution of lower level perpetrators to reach up to those at the highest levels who may have been responsible,” the chamber quotes from Kenya’s submission.

In response, the judges wrote, “The Chamber is surprised by such a statement which is actually an acknowledgment by the Government of Kenya that so far the alleged ongoing investigations have not yet extended to those at the highest level of hierarchy, be it the three suspects subject to the Court’s proceedings, or any other at the same level…This clearly contradicts the arguments presented by the Government of Kenya in its Reply that there are actually ongoing investigations in relation to,” the six cases under consideration.

The chamber noted that Kenya did not challenge the allegations against the six individuals in its application. In their responses to the government’s application, lawyers for Ali, Kenyatta, and Muthaura did not make any observations about it but reserved their right to challenge the admissibility of the case against their clients at a later date. Kosgey’s lawyer said the application had merits worth considering but had no more to say except to reserve the right to also challenge the admissibility of the case against his client. Lawyers for Ruto and Sang jointly responded, supporting the government’s application, while still reserving the right to make a challenge of their own later.

The chamber also concluded that there was no grounds for Kenya’s request for statements and other documents the ICC prosecutor has gathered during his investigation to assist Kenya in its own investigation. The chamber said such a request is to be considered under request for assistance provisions of the Rome Statute and not as part of an admissibility challenge. The chamber said it will make a separate decision on cooperation between the government and the ICC or other bodies later.

Kenya has five days to appeal the pre-trial chamber’s decision. The pre-trial chamber determines whether charges the ICC prosecutor has brought against anyone warrant going to trial. The chamber also handles all other legal proceedings ahead of a possible trial.