Self proclaimed Peace Negotiator loose ICC appeal

David Matsanga

Self proclaimed Ugandan peace negotiator cum Journalist Mr. David Nyekorach Matsanga has lost an appeal in which he sought to disqualify the International Criminal Court prosecutor from investigating him over claims he revealed identity of protected witnesses.

Judges at the Hague based court said Matsanga’s appeal did not have basis as it was targeting Luis Moreno Ocampo who has since left ICC.

“…the Request for disqualification is based on Mr Moreno- Ocampo's alleged direct and personal interest in investigating Mr Nyekorach- Matsanga”.

“Mr Moreno-Ocampo's term of office began on 16 June 2003 and, pursuant to article 42 (4) of the Statute, lasted for nine years. His term of office ended on 15 June 2012. With Ocampo having left office, the request to disqualify him has been rendered moot and must be dismissed as such,” reads part of a ruling issued by the court on Thursday.

Matsanga’s appeal relates to allegations that he knowingly sought to reveal the identity of an individual he believed to be a protected witness.

He made the appeal on the basis of article 42 of the Statute, which provides, in relevant part, that neither the prosecutor nor a deputy shall participate in any matter in which their impartiality might reasonably be doubted on any ground.

Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by the Appeals Chamber.

The court ordered that annexes to the request for disqualification remain confidential and ex parte.

The court said Matsanga's underlying claim for doubting the Prosecutor's impartiality is that the then-Prosecutor has a personal interest in the outcome of this investigation in that the Ugandan has made public complaints against Mr Moreno-Ocampo, which are related to the subject-matter of the investigation.

These complaints alleged that the Prosecutor had not properly carried out his investigations in the situation in Kenya and had committed perjury by withholding material evidence.

“Mr Nyekorach-Matsanga now contends that the investigation constitutes a "retaliatory action" and that, in investigating him, the Prosecutor "intended to a) silence [him], [...] one of the Prosecutor's critics on the African continent; b) stifle and render nugatory his complaint to the Appeals Chamber and c) pre-empt the investigations of a complaint he filed against the Prosecutor's intermediaries".

But the Prosecutor responded that Mr Matsanga's "claims are frivolous and fail as a matter of law".

“Given that the Request for Disqualification is dismissed as moot, the Appeals Chamber finds it unnecessary to consider the other remedies requested by Mr Nyekorach-Matsanga, all of which were aimed at facilitating the Appeals Chamber's consideration of the merits of the Request for Disqualification,” reads part of the ruling.

Matsanga had made the appeal through his lawyers Mr Charles A. Taku
Ms Beth S. Lyons. The judges who issued the ruling are Sang-Hyun Song, Judge Sanji Mmasenono Monageng, Akua Kuenyehia
,  Erkki Kourula and Anita USacka.

The prosecutor had initiated investigations on Matsanga on claims he was tampering or exposing some of the ICC witnesses. The witnesses will stand against some of the four Kenyans facing among others Crimes Against Humanity charges at the global court.

The suspects include Deputy Prime Minister Uhuru Kenyatta, former head of civil service Francis Muthaura, former minister William Ruto and former radio presenter Joshua Sang.

The chamber denied it had ignored Matsanga’s earlier appeal saying it had not been seized of any such complaint.

“The Appeals Chamber is aware that Matsanga has previously attempted to convey information to the judges of the Appeals Chamber outside of the context of any Court proceedings and without following the proper procedures for the filing of documents.”

Matsanga was informed by the Registry that the Appeals Chamber will not consider submissions sent directly to the Appeals Chamber and that all communications in relation to judicial proceedings must be in compliance with the applicable procedures, i.e., properly filed with and registered by the Registry.