Tuesday, 13.12.2010 LONDON, UK    Category: Media    24 comments


The Presiding Judges of the Pre-Trial Chamber II
Judge Hans –Peter Kaul
Judge EkaterinaTredaflova
Judge Cuno Tarfusser
The Hague



MY LORDS, The Judges,


Please allow me to, with profound humility make brief submissions, on my own behalf and on behalf of (AWM) which I head and represent.

First, I want to state that I am not requesting for Amicus Curiae application similar to that of Prof. Max Hilaire and William A, Cohn from the US. I am an African layman who wants to understand the interpretation of Article 15 of the ICC Statute and how  and when it should used by the Chief Prosecutor and President of the ICC court .

I wish to thank Your Lordships for the even-handed tenacity and steadfastness you have thus far collectively exhibited in respect of the proposed trial of the key perpetrators of the Post-Election violence in Kenya, preliminary proceedings in regard whereof  have been commenced by the ICC Chief Prosecutor Mr. Moreno Ocampo.


Your Lordships’ ruling of the 18th of February 2010 was apt and throws the Kenyan case wide open for knowledgeable and disinterested persons of good-will the world over to place before the Court cogent reasons why they feel the proposed ICC trial is substantively misplaced and why the Chief Prosecutor’s motives and concerted efforts to have Article 15 of the Rome Statute invoked in the Kenyan scenario may neither be above board nor beyond reproach.


In requesting that further and better information be furnished by Mr. Ocampo, the Pre-Trial Chamber correctly applied Rule 50(4) of the Rules of Procedure and Evidence.This because in the case instant, just as has unfortunately been the case in many  of the other African nations where Mr. Ocampo has sought to enforce the ICC’s mandate, the Chief Prosecutor has acted prematurely, blindly, with unmitigated haste and or has otherwise misapplied international law to suit and serve predetermined ends.

Many East Africans who have watched the Chief Prosecutor systematically dismember and or aggravate many an African nation or conflict around and about his present target; Kenya such as Uganda and the  Sudan  are deeply worried about the type, quality and caliber of evidence and information the Chief Prosecutor purported to use when inviting the Pre- Trial Chamber to make the profound and precedent setting decision of allowing the investigation and eventual prosecution of cases of alleged Crimes against Humanity in Kenya as provided for under Article 15 of the Rome Statute of 1998..

A case in point is Uganda where the self-same Chief Prosecutor arbitrarily and selectively indicted one side of the ongoing conflict in Northern Uganda - the LRA, very conveniently overlooking palpable crimes of a like, if not aggravated nature, committed by other key players in the said conflict, thereby effectively dealing a death blow to the hitherto concerted, long and arduous efforts at arriving at lasting peace in the region which efforts were,  at the time of the Chief Mediator’s intermeddling, near fruition.

With the foregoing, it is thus of much interest to taxpayers worldwide, who contribute greatly towards the sustenance of the ICC, to know the exact unbiased criteria the Chief Prosecutor employs in determining

which cases, amongst the many others across various regions of the globe, have higher or lower gravitas demanding the Chief Prosecutor’s intervention when admittedly murder is murder as duly recognized under Article 7 of the ICC Rome Statute.


It is now clear that most of the evidence and information the Chief Prosecutor used on the 26th of November 2009, to invoke Article 15 of the Rome Statute of 1998 was evidence and information predicated SOLELY upon the findings of a Government of Kenya instituted Commission of Inquiry chaired by Justice Philip Waki whose report was handed to, among others, Mr. Koffi Annan,


 The then Chief mediator in the crisis in Kenya following the country’s contested poll results of 2007.Surely; this cannot and should not rightly constitute the sole evidence, specific information and basis for invocation of Article 15 of the Rome Statute of 1998.


The Pre-Trial Chamber 11 ruling rightly points at the paucity of concrete evidence and specific information the Chief Prosecutor placed before the Chamber.Mr. Ocampo characteristically sought to make use of half baked conjuncture, hearsay and the untested content spewed by various talk shops in Kenya to support his quest.  The Chief Prosecutor sought to make a case for investigations and a trial for alleged crimes against humanity without properly or in the least following the guidelines outlined in the Rome Statute that governs the ICC. For this reason, the Statements before you in the Pre- Trial Chamber ll are selectively sexed and doctored to earn Mr. Ocampo a unmerited carte blanche to investigate and prosecute with eventual jeopardy to both those who allegedly committed crimes and to victims of the senseless killings that took place in Kenya in 2007-2008.



Even if the Chief Prosecutor manages to get authorization from the Pre= Trial Chamber 11 after 3rd March 2010 or was to in future present a second batch of evidence and information that will specifically point out the who , when. how , why , and with what means, the  acts of crimes against humanity were allegedly committed, Justice will already have been dealt a severe blow and will have been denied to both sides ( the accused and the Victims) due to the sheer   gravity and import of  errors already made by the Chief Prosecutor’s office. This because it is expected that best evidence/information would naturally and always take precedence in presentation. A substantial departure from the initial evidence and information tendered, which has been found to be wanting, will smirk


 Of a fixed afterthought and impressions created carry substantial weight where justice must not only be done but be seen to be done.


The Chief Prosecutor did not, on 26th November 2009, and will in the future not, by way of evidence and information tendered in relation to Kenya, discharge or otherwise satisfy the threshold set out under Article 7(2) Sections (A) through (I) of the Rome Statute, for acts constituting


Crimes against Humanity:

It is now clear that specific persons who directed the nefarious operations were not mentioned  in the first place on 26th November 2009 and that not even half of the requisite information was given to the Pre-Trial Chamber in the first place which leaves the entire proposed case in  a conundrum. It is my considered view, MY LORDS, that the Chief Prosecutor is imbued and possessed of too much power and is as a result single handedly using the said powers to ran roughshod over and create a sense of mob justice hysteria that could, if unchecked, more likely plunge the now peaceful Kenya into more chaos and problems than bring the much desired justice, peace, cohesion and healing to Kenyans.



From the month of June 2007, up and until March 2008, I was a Senior Sky News Consultant based in Africa. Kenya’s capital city Nairobi, was my hub of operations during the tumultuous months of December 2007 and January through February of 2008. I have herewith attached Sky News Video footage of events during the said period for the Pre- Trial Chamber 11 to evaluate whether or not there is sufficient and right nature of information and evidence in the Kenyan scenario to warrant a grant by the Chamber of authority to the Chief Prosecutor to commence investigations herein.

This also should help answer the second question in your Lordships’ ruling of 18th February 2010 as appertains to the specific persons or groups and incidents that are likely to be amenable to the focus of investigations by the ICC as opposed to application of the local judicial system mechanisms.  Kenyans are aware of some of the incidents that the Chief Prosecutor intends to use which he should have done in his 26th November 2009 submission, the envelope was presented to the ICC by not the Kenya Government but by a person who is not the employee of the Chief Prosecutor’s office. Dr. Kofi Annan was not


mandated by any means of international  Law to secretly hand over any documentation  to ICC/ So the actions of the  Dr. Kofi Annan remain contentious and for the Chief Prosecutor to use his `evidence  to ask for invocation of Article 15  will remain contestable now and in future   


I intend to raise issue, through the UN Security Council, as to how and why exactly one individual, styled in the title and office of the ICC Chief Prosecutor was single handedly given vast and largely unchecked powers to arbitrarily and capriciously decide upon whom, in the world stage, to pick on for the dishing out of International Arrest Warrants and upon whom to rain down threats of impending earth-shattering investigations.

I plan also to seek a reasoned explanation from the UN Security Council as to why it seemingly is only African countries that are under the microscope of the ICC Chief Prosecutor and also the criteria and considerations now employed by Mr. Moreno. Ocampo in order to designate Kenya a target for decimation and the new poster child and beneficiary of malignant international conspiracy.  


There is also the second question of Admissibility under Article 17 of the Rome Statute. The Chief Prosecutor has either altogether ignored or otherwise wrongly interpreted the pertinent provisions as set out under paragraph 10 of the Preamble of the Rome statute of 1998 and as read with Sections (a) and (d) of Article 17.From the very clear and unambiguous wording, it is amply evident that the Chief Prosecutor has flouted all pertinent rules of Evidence and Procedure in the manner he has proffered this application


The Chief Prosecutor has similarly failed to offer a sound or any Justification whatsoever,  and or compelling reasons why he should invoke Article 15 as required under Section (3) of Article 17 of the Rome Statute(1998).Chief Prosecutor has not justified    as to why he should use Article 15. The Learned Chief Prosecutor has not proved beyond any reasonable doubt to the Pre-Trial Chamber11 that Kenya as a country has failed to prosecute the same cases he intends to bring to the ICC through its national Judicial System. The ICC statute is very clear and the Chief Prosecutor has not and did not follow it.


Nowhere in his text, which I have pored through as a layman, has Mr.Moreno Ocampo alluded to or otherwise cited one single pointer to Kenya being a failed State thus necessitating the stepping in of the ICC and which state of affairs, if it were the case, might have served as a catalyst for the Chief Prosecutor to invoke Article 15 of the Rome Statute (1998).

The burden of proof lies squarely in the hands of the Chief Prosecutor to prove to the ICC and Pre- Trial Chamber ll that Kenya is indeed a failed State. It then falls upon the Pre- Trial Chamber to interpret what a failed state really entails.


This is the crux of the matter that must be determined as a condition precedent to any further progress of this matter. On top of the information and evidence required from the Chief Prosecutor, the Chamber must, as of essence, look at the merits or the case before them carefully and make a determination whether Kenya fits the profile of a failed State. The irony of the matter is that the international community is on one side telling the Kenya Grand Coalition to speed up vital systemic reforms and deliver vital freedoms to Kenyans while on the other hand some elements are doing about all they can to pull the coalition, and by extension the country, asunder. Authorization by the Pre-Trial Chamber 11 for the Chief Prosecutor to use of Article 15 will destroy Kenya and the peace that has grown for the last two years.


Part of the work of ICC is to stop and deter further occurrences or even digression of violence in various trouble spots across the globe. In Kenya today, peace has returned thanks to a good measure to intervention by the International community through peace initiative efforts spear-headed by Dr. Kofi Annan which led to a welcome, timely and workable Accord between key players. As an East African and an African, I share many things in common with Kenyans as I also do with the Sudanese who have borne the brunt of ICC actions visited, to differing degrees, upon their respective countries.

 Above all I share a common border with Kenya and what kills or hurts Kenya most surely kills or hurts my motherland Uganda also. If for whatever reason Kenyans have refused and or failed to remind your Lordships of the severe consequences sure to flow from the ICC unnecessarily dabbling in Kenya through the invocation of Article 15 of Rome Statute, I have conscientiously chosen to stand up and be counted.


These are of course my own personal feelings on this issue and are no reflection howsoever of the Government the of Kenya’s position.

The Chief Prosecutor may succeed in getting authorization to open prorio motu  investigations in Kenya but I want to, if need be, be the only human being left to challenge the sole authority of the Chief Prosecutor who, as the record attests, has consistently acted beyond God’s comprehension in all cases he has thus far brought before the ICC.




The peace accord that the International Community helped mould in 2008 will be severely fatally dented by the very actions of the ICC.The ICC factors have put this country at political crossroads. Some of the political actions directed against Kenya especially by International Criminal Court (ICC) and the Government of the USA are fueling mistrust and frustrating the road map to transparency which needs ample political guidance from the leadership and the government of Kenya.

AWM believes that most African states have de jure impunity that leads to defacto impunity simply because the level and sophistication of their democracy has not evolved to contain the instruments of the Plato Republic which most western civilities have attained.  


The ICC statute of 1998 was rejected by the USA because it overrides and erodes the interests of any country that ratified it. That is why the Government of the United States of America up to date has neither signed nor ratified the Rome Statute of 1998 that brought in the ICC in Rome.


What is shocking humanity around the world and especially some of us is to see Kenya, of all countries, used as a laboratory for experiments as happened in the previous conflicts that manifested into chaos under the guidance of the Chief Prosecutor and Dr Kofi Annan. East Africans are wondering whether Chief Prosecutor Moreno Ocampo wants to prove to the world that the ICC, an organization that Dr. Kofi Annan in 1998, as the then UN Secretary General helped to mould, can push Kenya to the


Brink of disaster as has been the fate of other like cases which have previously been handled by Dr. Kofi Annan.

The USA and other imperial agents are at the fore front of ordering African governments to adhere to the Principles of the 1998 Rome statute. While, ironically and quite baffling the self-same USA declined to sign and or ratify the treaty purportedly for reasons that the ICC offered no credentials for policing human rights abuses in the world.

The creation of ICC in 1998 has brought in one all powerful individual namely Mr. Moreno Ocampo who has unfortunately used this Court to ferment more political chaos than peace and justice in virtually all African countries which have suffered the misfortune of being recipients of the Chief Prosecutor’s largess. Ready examples of the Sudan,


Uganda and the DRC where ICC’s interference has killed entire peace processes of Darfur, LRA-Uganda and DRC- Thomas Lubanga respectively easily come to mind.


AWM categorically maintains and is alive to the fact that the global village does not, should not and must not condone impunity. Nor should any human rights abuses go unpunished. But that said, there is a real danger of over playing and over politicizing the events of the Post Election violence in Kenya which we are, with good reason, afraid might derail the same reforms that we champion and want to happen in Kenya.  The agitated actions of the ICC’s Moreno Ocampo against this very vital East African nation might create further violence that will decimate Kenya as we know it.  


The Kenyan government and its people endured the crippling Post Election
Violence that Dr.Kofi Annan helped to bring to a halt. But what is indeed surprising to many African international scholars and careful observers is the way the world has since utterly failed to give enough healing time for the Grand Coalition Government to re-strategize and deliver the much talked about reforms. The manner in which the conflict was resolved in Kenya is also questionable in that it was resolved using the right hand (which held the peace accord) while the concealed left hand brandished the killer dagger (the secret envelope, Ocampo etc!).


Simply put, YOUR LORDSHIPS, Dr. Kofi Annan is killing the same baby he so ably helped to midwife by allowing Mr. Ocampo to put Kenya on ICC trial.
Kenyans will remember the ICC for the helping them cross from Egypt but left them in the wildness to be decimated by the vagaries of man and nature.

MY LORDS, the Serena Accord which is unique in the African politique might turn into a political deathbed of a never ending inferno for the Government of Kenya for and Africa as a whole. The level and all encompassing nature of international interference by agencies such as the ICC has left a trail of sadness, despair and sadism in countries such as Uganda and the Sudan and must now come to an end.   

AWM duly notes that the dice is already loaded and set against the Grand Coalition government of Kenya and that the workability of the negotiated peace accord hangs dangerously at a political cliffhanger.In conflict resolution one needs to “shoehorn” all stake holders. This indeed is true and necessary in the Kenyan reality if the Grand Coalition is to survive the test of time.


The Grand coalition in Kenya warts and all has profoundly recalibrated Kenya’s political landscape and must be facilitated to stand and deliver vital reforms to Kenyans. Mr. Ocampo’s quest at The Hague is only serving to stoke vitriolic embers and not much else.


The power Grand Coalition in Kenya heralded a new chapter in Kenya’s political history where old enemies closed ranks to work together and avoid a full scale conflict similar to that of Rwanda in 1994. The Grand Coalition Government in Kenya again has become a difficult balancing act given the ever recurring silent and cheap brinkmanship often fueled by the USA and its external arsenal of proxies and puppets. This state of affairs has greatly compromised the all necessary spirit of compromise, consensus and co-operation in tackling and delivering on urgent reforms in Kenya.





AWM are not pessimists. We don’t think Kenya will fail or is a failed state as described under Article 17.3 of the Rome Statute, but the point we wish to register to the Pre=Trial Chamber 11 is that the country has way too many constant local and international political mercenaries that shoot down every iota of reform that it wants to introduce or advance.  It would be very strange in political science for an institution to work on deadline politics without making mistakes. Therefore, for Kenya to make effective and substantial transformation it needs good friends after 2 years of Peace and stability not those who threaten the survival of the same Accord they helped mediate.

There is need for centrifugal force of mutual political nature that would give ballast to the Kenya government without unduly having external supervisors like the ICC who at times threaten the same thread that holds the stop –gap-measure Accord that was ushered in 2008.



AWM recognizes the goodwill and space within which the government of Kenya can execute its difficult mandate of reforms. But there remains an aura of constant unyielding siege, fragility and of uncertainty engulfing the nation of Kenya.By its very essence, the Kenya Grand Coalition Government is itself a very fragile entity in political science with obvious enemies who do not want the President and Prime Minister to succeed.


The burden of responsibility of what might happen to Kenya lies in your hands as you decide this case after 3rd March 2010.   If in future the Chief Prosecutor Moreno Ocampo is granted his request and authorization to use Article 15 of the ICC statute to bring Kenya and Kenyans to The Hague for trial, I would have discharged my duty as an African layman who has challenged the flawed ICC methods and interpretations on Post- Election Violence in Kenya. History will judge harshly if I did not stand up to be counted as an African scholar who defended an African nation of Kenya. Dispensation of Justice will surely rest heavily on the shoulders of the Pre- Trial Chamber ll.  Should Mr. Moreno Ocampo be permitted to have his way and investigate Kenya which is not a failed state and has deliberately not failed to administer justice through their own judicial systems it will a failure and travesty to international interpretation of ICC Rome statute of 1998.


AWM will speak out and we shall maintain our stand of defending Africa regardless of the outcome .We will be judged by time as the main healer. Kenya needs healing period not warrants of arrest that will stifle the current peace that was brought in by Dr. Kofi Annan Accord of 2008. The current situation in Kenya does not warrant ICC intervention because the Government is trying to set up mechanisms of tackling impunity with the new constitution.  We believe that apart from adding chaos to the already fragile situation in Kenya Article 15 if used on Kenya will be flawed  of interpretation of international law and ICC statute of 1998.

My Lords we humbly submit


Thanking you in advance,

I remain

Yours truly


David Nyekorach- Matsanga (PhD).

Chairman/ CEO and consultant and Conflict Resolution Expert.  Political Scientist and International Relations scholar, Former Chief Negotiator in the LRA/ GOU peace Talks. Ugandan by birth.



President Mwai Kibaki of Kenya

President Kikwete of Tanzania.

President Kagame of Rwanda (for East African Community)

President Y.K Museveni of Uganda.

President P. Nkurunziza of Burundi

President of Zambia (Great Lakes Region)


President Kabila of DRC for (SADC).

The Chairman of African Union (Malawi High Commission).

Dr. Kofi Annan the Chief Mediator in the Kenya Conflict.

The UN Security Council Africa Representative HE Dr. Ruhakana Rugunda
The Chief Prosecutor’s Office The Hague




About me

Name:David Nyekorach - Matsanga (PhD)
Work: Publisher, Owner, Chairman of Africa World Media Ltd Specialist: Political Science, African History, Governance, Democrary, Great Lakes Region, Conflict Resolution, Media Impact on Africa, International Management and Lobby work
Location: London, Surrey UK

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