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Kenya businessman challenges legality of ICC investigation

Kenyan businessman Joseph Gathungu filed a lawsuit Wednesday challenging the constitutionality of the International Criminal Court (ICC) [official website] investigation into the violence following the 2007 Kenyan presidential election [JURIST news archive]. The suit, which was filed in the High Court [GlobaLex backgrounder] in Mombasa, argues that the ICC investigation is illegal under the constitution adopted last month [JURIST report]. Gathungu alleges that the investigation violates the letter and spirit [Daily Nation report] of the constitution, usurps Kenyan sovereignty and that the ICC is not a court that has been given competency under the constitution, making Kenya's ratification of the Rome Statute [text] illegal. The case is scheduled to be heard [KBC report] before Justice Jackton Ojwang on October 27. ICC chief prosecutor Luis Moreno-Ocampo [official profile] on Tuesday announced plans to present two cases [JURIST report] against as many as six individuals who "bear the greatest responsibility" for the violence following the elections. In March, the ICC's pre-trial chamber granted [press release] the chief prosecutor authority to launch the investigation into crimes against humanity committed during the post-election period. The announcement of Moreno-Ocampo's intent to prosecute those who planned and executed the post-election violence comes just days after Kenya's Justice Minister Mutula Kilonzo was heavily criticized for suggesting [Daily Nation reports] that with the passage of its new constitution, Kenya can better handle the prosecution of those responsible than the ICC.

In June, UN High Commissioner for Human Rights Navi Pillay [official website] called on Kenya to establish a special tribunal [JURIST report] to investigate post-election crimes. Pillay called the investigation into the deadly violence by the ICC a "major development." She warned, however, that the ICC's role would be limited to a handful of high-profile cases, which is why the need for a more wide-reaching investigation remains. The allegations of fraud [JURIST report] following the 2007 elections led to violence that caused the deaths of more than 1,000 people and displacement of 500,000 others, and remains a concern in the international community. The ICC initiated a formal investigation into the violence after Kenya failed to conduct [JURIST report] its own investigation.

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