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Original: English No.: ICC-01l09-02l11
Date: 7thOctober 2014
Before: Judge Kuniko Ozaki, Presiding
Judge Robert Fremr
Judge Geoffrey Henderson
Amicus Curiae Observations of National Council of Elders Kenya pursuant to
Rule 103(1)of the Rules of Procedure and Evidence
Source: National Council of Elders Kenya
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Document to be notified in accordance with regulation 31of the Regulations of the Court
The Office of the Prosecutor
Fatou Bensouda
James Stewart
Benjamin Gumpert
Legal Representatives of the Victims
Fergal Gaynor
Unrepresented Victims
The Office of Public Counsel for Victims
Ms. Paolina Massida
Ms. Caroline Walter
States' Representatives
Government of theRepublic of Kenya
Counsel for the Defence
Steven Kay QC
Gillian Higgins
Legal Representatives of the Applicants
Unrepresented Applicants for
The Office of Public Counsel for the
Amicus Curiae
Herman Von Hebel
Victims and Witnesses Unit
Nigel Verrill
Victims Participation and Reparations
Fiona McKay
Counsel Support Section
Detention Section
2/8 7th October 2014
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I. Introduction
1. Pursuant to Rule 103 of the Rules of Procedure and Evidence, National
Council of Elders Kenyahereby apply, for thereasons set out below, for leave
to submit observations asAmicus Curiae inthe caseof theProsecutor v. Uhuru
Muigai Kenyatta intheSituationintheRepublicof Kenya
II. Background
2. On 23January 2012,Pre-Trial Chamber Il'confirmed the charges against Mr.
Uhuru Muigai Kenyatta.
3. On 9July 2012, theChamber set the dates for the commencement of the trial
intheKenyatta case, for 11April 2013.
4. On 7march 2013, the Chamber vacated the trial commencement date of 11
April 2013and set thenew datefor start of trial as9July2013.
5. On 20June 2013, the Chamber vacated the 9July 2013trial date and set 12
November 2013as date for commencement of trial. This datewas vacated by
theHonourable Chamber on31October 2013,with 5February 2014set asthe
new datefor start of trial.
6. On 23January 2014, the Chamber vacated the trial commencement date of 5
February 2014,and initsplaceconvened astatus conferencepursuant toRule
132(2)of theRules.
7. On 31March 2014, the Chamber ordered the adjournment of theprovisional
trial commencement dateto7October 2014.
8. On 19September 2014,theChamber vacated thetrial date of 7October 2014,
and scheduled two status conferences for 7and 8October 2014.
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III. The Applicant
9. TheNational Council of Eldersisanon-political andnonpartisan Association
duly registered with the Registrar of Societies of Kenyaunder the Societies
ActChapter 108of theLawsof Kenya.
10.The Association brings together all the councils of Elders of the forty plus
communities inKenya.
11.The Association is comprjsed of 47 County Council of Elders where all
Communities resident inanyparticular county arerepresented.
12.TheAssociation alsohas 10Regional Council of Elders whose membership is
delivered fromthe47County Councilsof Elders.
13.The10Regional Councils of Elders ultimately formthe National Council of
Elders (NCE)whereeveryregioniswell represented.
14.The National Council of Elders (NCE) was established with the following
a. Topromote unity of all thecommunities of theRepublic of Kenya.
b. To work for aunited Kenyaby promoting understanding, unity and
cooperation within and among all Councils of Elders of all
Communities inKenya.
c. Toprovide anumbrella focal platformfor affiliatecouncilsof elders to
interact, harmonize, negotiate, cohere, dialogue, manage and resolve
conflictsandoffer alternative conflictanddispute resolution.
d. Toimprove thelivelihoods of all communities of Kenyaby combating
illiteracy, poverty and disease.
e. To preserve, promote, conserve, update and modernize the cultural
heritage andpractices of thediversecommunities of Kenya.
f. Topromote sustainable economicthrift of all communities inKenya.
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g. Topromote educational training and industrial technology programs
to build capacity and empower Kenyans for economic and social
h. To counsel the youth in good conduct, discipline, respect for their
progressivecultural valuesandsociallyacceptableenterprises
1. Toresolveany conflictsaffectingtheunity, welfareand future of the
15.To date, the NCE has managed to resolve disputes between different
communities inKenyathemost recent beingtheresolution of theboundary
16.TheNCEiscurrently involvedinresolving,theconflictbetween theGalleand
17.TheNCEisalsoinvolved inresolvingtheconflictbetween theTurkana and
Pokot Communities of theformer RiftValleyProvince.
IV.The application for leave tointervene
18.Rule 103(1) of the Rules of Procedure and Evidence ("theRules") of the
International Criminal Court ("ICC"or "theCourt") provides that: "At any
stage of the proceedings, a Chamber may, if it considers it desirable for the
proper determination of the case, invite or grant leave to a State,
organization or person to submit, in writing or orally, any observation on
any issue that the Chamber deems appropriate."
19.Pursuant to Rule 103 of the Rules, States, organizations or individuals
interested toparticipate intheproceedings beforetheCourt arepermitted to
submit applications andparticipateintheproceedings beforetheCourt.
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20.The Appeals Chamber, in deciding whether or not to grant leave to an
Applicant tosubmit observations asamicuscuriaeinaccordancewithRule103
of the Rules, has underlined that the respective Chamber should take into
consideration whether theproposed submission of observations may assist it
"in theproperdeterminationof the case".'
21.Other International Tribunals have permitted third party interventions, such
as, theInternational Criminal Tribunal fortheformer Yugoslavia("ICTY"),the
International Criminal Tribunal for Rwanda ("ICTR")and the Special Court
for SierraLeone ("SCSL"),on similar basis as Rule 103(1).TheseTribunals
have permitted submissions fromthird parties when it was determined that
thesubmissions assistedtheCourt inreachingtheright decision.
22.TheAppeals Chamber of theSpecial Court of SierraLeonehas further found,
when ruling on the application by Non Governmental Organizations to
intervene intheKallencasethat: "The issue iswhether it isdesirable to receive
such assistance, and 'desirable' does not mean 'essential' (which would be
over-restrictive) nor does it have an over-permissive meaning such as
'convenient' or 'interesting'. The discretion will be exercised in favour of an
application where there is a real reason to believe that written submissions,
or such submissions supplemented by oral argument, will help the Court to
reach the right decision on the issue before it."
23.Itissubmitted that submissions bytheApplicant asamicus curiaeisof great
importance whichmayassist inguiding theCourt toreachajust adjudication
of thismatter.
1Decision on "Motion for Leaveto File Proposed Amicus Curiae Submission of the International Criminal
Bar Pursuant to Rule 103 of the Rules of Procedure and Evidence" ICC-01/04-01/06 OA 11 of 22 April 2008.
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v. Specific issues the applicant seeking leave tosubmit amicus curiae on
24.In the event the Honourable Trial Chamber grants this humble request for
leave to subrnit observations pursuant to Rule103, the applicant intends to
submit itsAmicus Curiae brief onthefollowingissues:-
a. Theimportance of in-depth understanding of thehistorical origins of
the2007/2008conflictandsimilar conflictsoccurringaswaybackasthe
colonial days.
b. Thehistorical interaction between the different communities resident
c. An in-depth understanding of the African Justice systems and
d. The implications of the current proceedings on National healing,
e. Theimpact of continuing thetrial of Mr Uhuru Muigai Kenyattawhen,
bytheProsecutor's ownadmissionitsevidentiary basishas collapsed.
f. The impact of continuing the case on the victims whose legitimate
VI.Further Justification
25.That theAssociationhas over theyears worked with thevictims of political
related violencethrough their respective affiliatecouncilsof Elders andhave
continuously tried to reconcile the protagonist communities and to forge
national healing, integration andcohesion.
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VII. Conclusion
26.That it is in the interest of the Kenyan Nation, the region and international
community of nations that the healing process currently taking place in
27.For theforegoing reasons theNational Council of Elders Kenyarequests that
the Chamber grant it leave to submit as Amicus Curiae observation on the
issues pursuant to rule 103of the Rules and to be granted standing at the
status conferencescheduled for 7
October 2014.
Peter NjengaMwangi
TheNational Council of Elders (Kenya)
Datedthis7thdayof October, 2014.
At Nairobi, Kenya
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