"States have the first responsibility to exercise their penal jurisdiction, and the Court's role is not to replace but to complement their actions," the Appeals Chamber said. However, it rejected the motion on the grounds that Kenya had not proven it was carrying out its own investigations.
Kenya had argued that the adoption of a new constitution in August 2010 and the gradual setting up of new judicial structures meant it would soon be able to conduct the trials itself. But the Appeals Chamber said it was not enough to be ready to take such steps, but that "if a State raises an argument of irreceivability, it must provide to the Court elements of proof that are sufficiently specific to demonstrate that in effect it is carrying out investigations into a case".
In December 2010, the ICC prosecutor began investigating crimes committed in Kenya in the wake of the 2007 presidential election. This is the first time he opened investigations on his own initiative, rather than at the demand of a State Party or the UN Security Council.
It is also the first time that a State has contested the receivability of a case by the ICC.
The Appeals chamber's decision was taken by a majority of four judges. However, in a dissenting opinion, Lithuanian judge Anita Usacka said 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", whereas there is no ICC jurisprudence to date on these points.
Confirmation of charges hearings are due to start Thursday in the case of Kenya's former Higher Education Minister William Ruto, former Minister for Industrialisation Henry Kosgey and radio executive Joshua arap Sang. Similar hearings are due to start on September 21 in the case of Finance Minister Uhuru Kenyatta, secretary to the cabinet Francis Kirimi Muthaura and former police chief Mohammed Hussein Ali. All six are accused of crimes against humanity in relation to the post-electoral violence of 2007/ 2008. They are not currently in detention. All six answered summonses to appear before the court in April.
© Hirondelle News Agency