•Defence lawyer Cherono argues the case can only be handled by a tribunal or the suspects taken to the International Criminal Court in the Hague, Netherlands.
Image: DOUGLAS OKIDDY
The debate as to whether murder suspects under the International Crimes Act should be tried locally or at the ICC has resurfaced in the wake of the start of criminal proceedings against police bosses in Baby Pendo's death.
The DPP in October approved murder charges against the 12 police commanders after the Independent Policing Oversight Authority conducted its investigations and a magistrate ruled the suspects have a case to answer following an inquest.
On Monday, Titus Yoma, Titus Mutune, John Chengo, Linah Kogey, Benjamin Koima, Benjamin Lorema, Volker Edambo, Cyprine Robi, Josphat Sensira, Mohammed Ali Guyo and James Rono were arraigned before Justice Kanyi Kimondo at the High Court in Nairobi to take the plea.
One suspect, Mohammed Baa, was not in court, and a warrant of arrest was issued against him.
Their appearance in court on Monday followed a directive by Justice Daniel Ogembo that the suspects take a plea on November 21 after they were presented before him a week earlier.
However, the suspects did not take a plea after the Director of Public Prosecutions asked for more time to peruse the file again.
The DPP's request stemmed from spirited efforts by defence lawyers who argue that the charges as framed under the International Crimes Act cannot be handled by the court.
They said a special court or tribunal should be formed to hear the matter.
The suspects said they had already filed objections at the Constitutional and Human Rights Division of the High Court to stop their prosecution.
It was their argument that the plea-taking be held in abeyance until the case is heard and determined.
Before Justice Kimondo on Monday, defence lawyer Cherono argued that the case can only be handled by a tribunal or the suspects taken to the International Criminal Court in the Hague, Netherlands.
Lawyer Mukuri for the suspects said the case was new and that they had raised issues of jurisdiction which should be thrashed out before the trial commences.
"If our clients are to be charged under the International Crimes Act, then there must first be a confirmation of charges. This is a novel case and that is why we want plea-taking held in abeyance pending the determination of the issues raised," he said.
That submission appeared to have startled the prosecution with the senior assistant director of public prosecutions Alexander Muteti asking the court to grant them more time to review the charges.
"We are seeking 21 days so that we get time to peruse the file in light of the issues raised. We are making this humble plea so that we are not accused of trampling on the rights of the accused persons," Muteti said.
Earlier, prosecutor Tabitha Ayuo had told the court they were ready for plea-taking and that subjecting the suspects to mental assessment to ascertain their fitness to stand trial was the only matter pending.
Lawyers representing the victims vehemently opposed the DPP request for more time and pushed for the suspects to take the plea.
"We are ready for plea-taking. Any other issues can be dealt with later," said Festus Kinoti representing Ipoa.
The prosecution insisted the matter before the court was of unique nature with far-reaching implications.
Ayuo said there ought to be no breach of rights.
She said a child died and violations relating to sexual violence and torture were committed hence the need to proceed with caution.
"It is on this basis that we are pleading for more time to thrash out the issues so that we avoid instances of rulings halting this trial because then we would not be doing justice to the court," Muteti said.
The defence lawyers maintain their clients cannot be tried before local judges and that even such a trial would require a bench of an uneven number of judges.
Lawyer Moses Audi while weighing in on the matter said the High Court "is clothed with proper jurisdiction to hear the case because our Constitution allows application of international laws as part of our laws."
Audi argued that unless the ICC itself makes a special request for the suspects to be tried at the Hague, then there would be nothing stopping the case from proceeding at the High Court.
"In this matter, there has been no such request," he said.
Justice Kanyi Kimondo on Monday deferred plea-taking to January 30 next year given the 21 days requested by the prosecutors would fall in the middle of December, when many courts are in recess.
"All the suspects shall be escorted to Mathari Hospital to appear before a psychiatrist for examination as to their mental fitness and that a report shall be furnished to the court," the judge ordered.
On the matter of jurisdiction, the judge said:
"The suspects are at liberty to move the court for a determination of the question of the propriety of the information now placed before the High Court or the jurisdiction of the High Court during the present matter. The less i say about it the better."