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Dispatches: ICC Watchers Should Stay Tuned to Kenyan Court

People interested in the upcoming International Criminal Court trial of Kenya’s President Uhuru Kenyatta should keep their eyes on developments before a Nairobi court.

On Tuesday it emerged that a Nairobi high court judge had decided to forbid the media and the public from witnessing proceedings on petitions related to Kenyatta’s upcoming trial before the ICC.

Kenyatta and his deputy, William Ruto, are due to face trial before the ICC in two separate cases on charges of crimes against humanity for their alleged roles in the country’s 2007-2008 election violence, which left more than 1,100 dead.

It is not publicly known what the petitions are about, but a lawyer’s statement makes clear that the requests, made on behalf of Kenyatta’s ICC lawyer, concern the ICC process. The proceedings involve two telecom companies, and speculation is rife. Some believe Kenyatta’s lawyer wants telecom records for evidence, others think he wants to stop ICC prosecutors accessing telecom records, but in truth no one knows – everything will now take place behind closed doors.

International law requires that all court hearings should in principle be public, although certain exceptions may be made, including to protect witnesses – one of the justifications invoked by the judge here, again according to a lawyer in the case. The judiciary indicated that information about the case would be available following its conclusion, provided it did not affect the integrity of ICC proceedings.

One civil society group protested the decision to hold confidential proceedings, indicating publicly it would take legal action. A presidential spokesperson lashed back, defending the judge’s decision and declaring “the President and Deputy President have a right to use all available legal avenues to prepare their defence.”

This is not the first time Kenyan courts have taken up matters related to the ICC cases. For over two years a “temporary” injunction has barred the ICC prosecutor from taking the testimony of Kenyan police officials, with little movement to resolve an underlying case. 

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