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Post by OtishOtish on Nov 25, 2013 22:11:13 GMT 3
Jakaswanga:
Kenya's four proposals to amend the Rome Statute are not on the table. Kenya ignored the most basic of things---the 3-month notice to the UN Secretary-General---and the working group, on Friday, made it clear that those proposals will have to wait.
What people are now laboring on is a "rule" in the Rules of Procedure and Evidence. That can be amended but the relevant law says that if any amended rule conflicts with the statute, then it is to be ignored; so ultimately it is up to the judges who have the final say on whether an amendment is any good. That is why yesterday there were late-night consultations with the court.
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Post by OtishOtish on Nov 25, 2013 22:24:16 GMT 3
Kamale: I read several articles by Ngunjiri Wambugu and concluded that there must be better ways to spend time, for both writer and reader. So I can't be bothered to look at another of his articles. Do you have a specific question that does not require doing so? .....he did raise what I think is an important issue regarding the guys that burnt, killed and maimed in Naivasha and who Bensouda has requested immunity against prosecution for the mungiki 'witnesses'?
As you often counsel me to read slowly......have you Seen it? And, once again, you should have not read carefully and slowly. My specific "issue" is not whether you have a question or what the question is; it is whether you have a "question" that can be answered without my having to waste time on the results of random neural activity by Ngunjiri Wambugu. I read what you wrote. Slowly. You say he raised an "important issue" and you then ask for my perspective. But I don't know what the "important issue" is, and I can't be bothered to read another article written by that fellow. Impasse.
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Post by kamalet on Nov 25, 2013 22:28:58 GMT 3
.....he did raise what I think is an important issue regarding the guys that burnt, killed and maimed in Naivasha and who Bensouda has requested immunity against prosecution for the mungiki 'witnesses'?
As you often counsel me to read slowly......have you Seen it? And, once again, you should have not read carefully and slowly. My specific "issue" is not whether you have a question or what the question is; it is whether you have a "question" that can be answered without my having to waste time on the results of random neural activity by Ngunjiri Wambugu. I read what you wrote. Slowly. You say he raised an "important issue" and you then ask for my perspective. But I don't know what the "important issue" is, and I can't be bothered to read another article written by that fellow. Impasse. Ha ha ha!!!! Nice one. Ignore Wambugu the writer, why dont you just address the 'immunity issue for the criminals' of Naivasha as you have written thousands of words on 'immunity for the accused'? But you know what? Do not bother, I already can imagine your views oh you crusader for the victims!!!
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Post by Deleted on Nov 26, 2013 1:17:08 GMT 3
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Post by Deleted on Nov 26, 2013 1:28:35 GMT 3
ICC: Week of setbacks for Kenya at The Hague
"Also the states had not counted on the strong showing by NGOs. These are not allowed to speak in Addis Ababa, but are given speaking roles in meetings of the ASP. Kenyan and international NGOs provided independent perspectives, for example, urging the position that the Kenyan Constitution does not allow for head of state immunity and that in promoting this resolution, the AU was encouraging Kenya to contravene its own constitution."www.africareview.com/News/Week-of-setbacks-for-Kenya-at-The-Hague/-/979180/2086272/-/og5xjez/-/index.html
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Post by OtishOtish on Nov 26, 2013 17:37:33 GMT 3
Where things stood last night on amending rules on "presence": www.jfjustice.net/tentative-outcome-of-sub-group-dated-25-november-2013-from-the-secretariat-of-the-assembly-of-states-parties/This is one part of four subparts to the new proposed Rule 134. The starting point for the debate was the current Rule 134 followed by New draft Rule 134 bis: Trial in the presence of the accused
The accused shall be present during the trial in accordance with article 63, paragraph 1.
Commentary: The draft rules 134 bis to 134 quater are understood to constitute a special set of rules addressing the issue of presence at / absence from trial. In order to convey the idea of a set of interdependent rules, it was felt useful to initiate it by repeating article 63 of the Rome Statute.
New draft Rule 134 ter: Presence through the use of video technology
1. An accused subject to a summons to appear may submit a written request to the Trial Chamber to be allowed to be present in the courtroom through the use of video technology during part or parts of his or her trial.
2. The Trial Chamber shall rule on the matter on a case-by-case basis.
New draft Rule 134 quater: Excusal from presence at trial
1. An accused subject to a summons to appear may submit a written request to the Trial Chamber to be excused and to be represented by counsel only during part or parts of his or her trial.
2. The Trial Chamber shall only grant the request if it is satisfied that:
a) exceptional circumstances exist to justify such an absence;
b) alternative measures, including changes to the trial schedule or a short adjournment of the trial, would be inadequate;
c) the accused has explicitly waived his or her right to be present at the trial; and
d) the rights of the accused will be fully ensured in his or her absence.
3. The Trial Chamber shall rule on the matter on a case-by-case basis, with due regard to the subject matter of the specific hearings in question. Any absence must be limited to what is strictly necessary.
4. Notwithstanding paragraphs 1 to 3 above, if the accused is a sitting Head of State or Government, or a person entitled to act in such capacity, has prior to the commencement of the trial submitted to the jurisdiction of the Court, appearance by such person throughout the trial may, if he or she so wishes, be by counsel, provided a notice in writing has been filed with the Court stating that the accused has explicitly waived his or her right to be present at the trial and the trial chamber is satisfied that the rights of the accused will be fully ensured in his or her absence. The debate is continues.
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Post by OtishOtish on Nov 26, 2013 18:17:43 GMT 3
This just in ... following the decision by the Appeals Chamber, the Trial Chamber has granted the OTP's request for a consideration of the Uhuru Excusal. He is now subject to the same conditions as Ruto: www.icc-cpi.int/iccdocs/doc/doc1689002.pdf
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Post by OtishOtish on Nov 26, 2013 19:19:20 GMT 3
There has been agreement on a draft proposal that will now be submitted to the assembly. There is a high probability that it will be accepted---a minimum 2/3 majority is required---but that is by no means a foregone conclusion. I think we should expect some fierce and justified opposition. And even if it is adopted, it will be up to the judges to decide whether it is in accord with the Rome Statute; if they decide it is not, then it will not do any good.
On a personal note, as with the Ruto case, while it is an approach I don't much care for, I think an arrangement that stops anyone from doing a runner (and which, therefore, guarantees that there will be trials) should be accepted.
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Post by OtishOtish on Nov 27, 2013 17:16:19 GMT 3
What can we expect of the proposal? Interesting question. I suspect that it will be closer to the UK one than to the ones by Kenya & Friends. If it is adopted, the half-loaf should be enough for Kenya to claim some sort of victory, and everyone can go home happy. The new Rules 134 ( bis to quater) have been adopted. It will allow more flexibility in absences and the use of video-technology. They are actually more restrictive than what GoK wanted; e.g. the video part is what the British proposed and not what Kenya proposed. Application could still cause some headaches. In particular, it has clauses on: * "exceptional circumstances" * excusal only if all other options are not possible * decisions on a case-by-case basis They also allows consideration of "extraordinary public duties" when absences are requested. This is the part most likely to be helpful to Uhuru and Ruto as the manner in which the relevant rule is stated seems to allow a bit more room to move. Basically what the rules do is codify the conditions set by the Appeals Chamber and then add the bit about public duties. See red above. Now, let's move on with the trials.
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Post by kamalet on Nov 28, 2013 8:41:33 GMT 3
What can we expect of the proposal? Interesting question. I suspect that it will be closer to the UK one than to the ones by Kenya & Friends. If it is adopted, the half-loaf should be enough for Kenya to claim some sort of victory, and everyone can go home happy. The new Rules 134 ( bis to quater) have been adopted. It will allow more flexibility in absences and the use of video-technology. They are actually more restrictive than what GoK wanted; e.g. the video part is what the British proposed and not what Kenya proposed. Application could still cause some headaches. In particular, it has clauses on: * "exceptional circumstances" * excusal only if all other options are not possible * decisions on a case-by-case basis They also allows consideration of "extraordinary public duties" when absences are requested. This is the part most likely to be helpful to Uhuru and Ruto as the manner in which the relevant rule is stated seems to allow a bit more room to move. Basically what the rules do is codify the conditions set by the Appeals Chamber and then add the bit about public duties. See red above. Now, let's move on with the trials. Njakip Updates? Or should we just believe the media that there was more than amendment that was passed that would have favoured our accused duo? It would appear that your bead(n)s did not exactly fall at the right place!
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Post by b6k on Nov 28, 2013 12:03:16 GMT 3
The new Rules 134 ( bis to quater) have been adopted. It will allow more flexibility in absences and the use of video-technology. They are actually more restrictive than what GoK wanted; e.g. the video part is what the British proposed and not what Kenya proposed. Application could still cause some headaches. In particular, it has clauses on: * "exceptional circumstances" * excusal only if all other options are not possible * decisions on a case-by-case basis They also allows consideration of "extraordinary public duties" when absences are requested. This is the part most likely to be helpful to Uhuru and Ruto as the manner in which the relevant rule is stated seems to allow a bit more room to move. Basically what the rules do is codify the conditions set by the Appeals Chamber and then add the bit about public duties. See red above. Now, let's move on with the trials. Njakip Updates? Or should we just believe the media that there was more than amendment that was passed that would have favoured our accused duo? It would appear that your bead(n)s did not exactly fall at the right place!
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Post by OtishOtish on Nov 28, 2013 16:18:08 GMT 3
[ Njakip Updates? Or should we just believe the media that there was more than amendment that was passed that would have favoured our accused duo? It would appear that your bead(n)s did not exactly fall at the right place! Nothing wrong with my beads! Nowhere was anything put with 100% guarantee; as they indicated, there was always a chance of success but the timing made it tricky. I'm not sure about what you mean by " something more than amendment". Please clarify. As I have indicated, with respect to both cases, I am all for arrangements that stop people from doing a runner, thus bringing trials to an end. Let us now look forward to February.
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Post by kamalet on Nov 28, 2013 16:28:50 GMT 3
[ Njakip Updates? Or should we just believe the media that there was more than amendment that was passed that would have favoured our accused duo? It would appear that your bead(n)s did not exactly fall at the right place! Nothing wrong with my beads! Nowhere was anything put with 100% guarantee; as they indicated, there was always a chance of success but the timing made it tricky. I'm not sure about what you mean by " something more than amendment". Please clarify. As I have indicated, with respect to both cases, I am all for arrangements that stop people from doing a runner, thus bringing trials to an end. Let us now look forward to February. Njakip Apologies for the typos! It would appear that more than one amendment "favoring Kenya" went through. I would appreciate details as I cannot understand what the media are reporting for lack of clarity whilst it is possible you might have the actual amendments passed. I am looking to January rather than Feb to see if the 'difficult to get' witnesses show up and what they've to say. I am still owed an answer on a question I asked you that you have ignored!
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Post by OtishOtish on Nov 28, 2013 16:46:10 GMT 3
Njakip Apologies for the typos! It would appear that more than one amendment "favoring Kenya" went through. I would appreciate details as I cannot understand what the media are reporting for lack of clarity whilst it is possible you might have the actual amendments passed. I am looking to January rather than Feb to see if the 'difficult to get' witnesses show up and what they've to say. I am still owed an answer on a question I asked you that you have ignored! Kamale: There were amendments to Rules 68 and 100. The proposals were made by judges last year, and they came into the ASP session "pre-approved" by the Working Group on Amendments. Some time back, I commented briefly on those in another thread: "One is to Rule 100 of the Rules of Procedure and Evidence (i.e. not changes not to the Rome Statute), and the other is to Rule 68 of the same. The former covers the place of trials.
The change to Rule 100 would make it easier to hold trials away from the Hague, in that it would basically empower the Trial Chamber to make the final decision. But that would not do Kenyatta much good: the chamber still has to consult the other parties; and after such a consultation in the Kenyan case, the proposed "away" parts were pretty much limited to the start and end of the trials."Read more: jukwaa.proboards.com/thread/8762/options-denial-icc-deferral#ixzz2lwmX4eONWith respect to Rule 100, Uhuru Defence could still ask for opening, closing, and non-evidentiary parts of the trial to be held in Arusha or elsewhere. In the new circumstances, however, he is likely to get numerous excusals, and the court might well want to retain "something" at the Hague. Let's wait and see what sort of application they make. The other amendments are the three additions to Rule 134: Rules 134 bis, 134 ter, and 134 quater. Those are pretty much as I summarized them above.
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Post by OtishOtish on Nov 28, 2013 22:44:51 GMT 3
Kamale, an update: All the amendments, as adopted, are now up at the ASP website. You will find them here: www.icc-cpi.int/iccdocs/asp_docs/Resolutions/ASP12/ICC-ASP-12-Res7-ENG.pdfAs you can see, there are several aspects of the Rule-amendments that are likely to cause problems somewhere down the road and probably in the first half of 2014. The usual equipment tells me that it will be left to the ICC Appeals Chamber to give the final word on this. The issue will eventually come to a head under Article 51(5) of the Rome Statute: "In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail."
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Post by jakaswanga on Nov 28, 2013 23:31:49 GMT 3
Kamale, an update: All the amendments, as adopted, are now up at the ASP website. You will find them here: www.icc-cpi.int/iccdocs/asp_docs/Resolutions/ASP12/ICC-ASP-12-Res7-ENG.pdfAs you can see, there are several aspects of the Rule-amendments that are likely to cause problems somewhere down the road and probably in the first half of 2014. The usual equipment tells me that it will be left to the ICC Appeals Chamber to give the final word on this. The issue will eventually come to a head under Article 51(5) of the Rome Statute: "In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail." This court has been played by big powers, and I will be keen to see how these judges deal with that crisis of credibility. Trial in absentia as the rule is lame philosophy. This court knows it is a boat taking plenty of water with speed. Let us watch tough gal Bensouda salvage some float!
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Post by einstein on Nov 30, 2013 4:38:30 GMT 3
OtishOtish,I must admit that you have invaded Jukwaa with IMPUNITY viz-a-viz ICC !! I am laughing my head off! Even the likes of the Uhuruto defenders are left speechless from your ICC presentations. They know themselves!! But after your sterling performance on Jukwaa, I want to change my mind about your DC membership, if AND ONLY IF, YOU ARE NOT YET A MEMBER!! You are an ICC bomb! So, please feel free to join us on DC if you are not yet a member. But, please keep in mind that DC has got zero tolerance for ALL FORMS OF SH!T.Even if you do not join DC, please keep up your ICC sterling performance on Jukwaa! It is always a pleasure reading from you viz-a-viz ICC!! Cheers!
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Post by b6k on Nov 30, 2013 9:45:17 GMT 3
OtishOtish,I must admit that you have invaded Jukwaa with IMPUNITY viz-a-viz ICC !! I am laughing my head off! Even the likes of the Uhuruto defenders are left speechless from your ICC presentations. They know themselves!! But after your sterling performance on Jukwaa, I want to change my mind about your DC membership, if AND ONLY IF, YOU ARE NOT YET A MEMBER!! You are an ICC bomb! So, please feel free to join us on DC if you are not yet a member. But, please keep in mind that DC has got zero tolerance for ALL FORMS OF SH!T.Even if you do not join DC, please keep up your ICC sterling performance on Jukwaa! It is always a pleasure reading from you viz-a-viz ICC!! Cheers! Einstein, I for one have always been of the opinion that the cases should proceed to their logical conclusion with ALL parties attending. They are all well and truly personal challenges after all. I'm not surprised to see you extending an olive branch to your former nemesis, Otishotish who lovingly refers to you as Ghost just because his stance would work in favour of your politically wounded Ker, RAO. You're more than welcome to take him to DC as y'all deal with your sh!t (that was electoral loss) in Kumbaya land. Here's the CJ's take on your predicament viz a viz the KE judiciary from the 1:05 mark:
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