ICC-01/09-44-Anx 15-02-2011 1/14 CB PT

ANNEX

PUBLIC ICC-01/09-44-Anx 15-02-2011 2/14 CB PT

Coyr Pénal© ^ ^ »• A ^1 Internationale vwiol International "^ Criminal Coyrt

Original: English Date: 9th February 2011

PRE-TRIAL CHAMBER II

Before: Judge Ekaterina Trendafilova, Presiding Judge Judge Hans-Peter Kaul Judge Cuno Tarfusser

SITUATION IN KENYA

URGENT

PUBLIC APPLICATION FOR LEAVE UNDER ARTICLE 58 AND ARTICLE 42 (5) (7) AND 8(a) OF THE ROME STATUTE AND RULE 34(1) (d) AND (2) OF THE RULES OF PROCEDURE AND EVIDENCE TO PARTICIPATE IN THE PROCEEDINGS BEFORE THE PRE-TRIAL CHAMBER RELATING TO THE PROSECUTOR'S APPLICATION MADE UNDER ARTICLE 58(7)

Source: JOSHUA KIRWA [ARAP] SANG

COUNSELS: (1) JOSEPH KIPCHUMBA KIGEN- KATWA (2) JOEL KIMUTAI BOSEK

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Document to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor Counsel for the Defence MORENO OCAMPO (1) JOSEPH KIPCHUMBA KIGEN- KATWA (2) JOEL KIMUTAI BOSEK

Legal Representatives of the Victims Legal Representatives of the Applicant

Unrepresented Victims Unrepresented Applicants (Participation/Reparation)

The Office of Public Counsel for Victims The Office of Public Counsel for the Defence states' Representatives Amicus Curiae

REGISTRY Registrar Defence Support Section Ms Silvana Arbia

Deputy Registrar Detention Section Victims and Witnesses Unit

Victims Participation and Reparations Section Other

A. INTRODUCTION

1. THE APPLICANT'S IDENTITY. DOMICILE AND CAPACITY

The Applicant herein is Joshua Kirwa [Arap] Sang. The Applicant is a Kenyan citizen by birth and adult of sound mind. He is a radio broadcaster in a radio station, Kass FM in Nairobi, Kenya. The Applicant's home is Cherangany Constituency, Trans-Nzoia County, Rift Valley. The Applicant's Trans-Nzoia County is cosmopolitan with approximately 54,000 voters made up roughly of about 40% Luhyas, 30% Kalenjins, 15% Kikuyu, 6% Kisii and the rest are other Kenyan tribes including the Turkana. He subscribes to Christianity and belongs to the African Inland Church {A.I.C) denomination. He is the patron of his local A.I.C Church, Seum in Trans-Nzoia. He is a member of a youth movement called Trans-Youth Forimi. He is a founder member of Cherangany Foundation in Trans-Nzoia which deals with the environment, education, health etc and have set up a website for the foundation. He has facilitated a football tournament in his Cherangany Constituency since 2008 on annual basis, where all communities participate. He supports a movement called "Alcohol Recovery Movemenif' which endeavours to arrest abuse of liquor and alcohol in the immediate and in the extended society.

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He first became aware that he was a suspect on 15*^ December 2010 when the Intemational Criminal Court {ICC} Chief Prosecutor addressed a Press conference in The Hague, Netherlands naming six individuals allegedly believed to bear the greatest responsibility for the 2007-2008 Post Election Violence. He was also named by the prosecutor on the same date in one of his two applications to the court under Article 58(7) (ICC -Ol/09-30-Redacted-Situation in The Republic of Kenya-Prosecutor's Application Pursuant to Article 58 as to William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang).

2. CAPACITY

The Applicant makes this Application as a suspect who has inherent rights under the Rome Statute and whose rights are directly affected by the Prosecutor's Application.

The Applicant will be represented by his counsels of choice, Joseph Kipchumba Kigen- Katwa and Joel Kimutai Bosek, both Advocates of the High Court of Kenya.

3. APPLICANT'S REQUEST AS TO PROCEEDINGS IN COURT AT THE HAGUE The Applicant seeks that he does address the court in KALENJIN DIALECT, of Kenya, on all matters where he is to be addressed directly or otherwise in his testimony, except on matters presented to court on his behalf by his chosen counsel, and respecting which the law substantively and procedurally allows his coimsels to present on his behalf. The charges proposed by the prosecutor against him are based on allegations of words allegedly uttered by the Applicant in Kalenjin dialect of Kenya amoimting to crimes against humanity.

B. BACKGROUND

4. The Prosecutor wrote a letter dated 5*^ November 2009. notifying the President of the Intemational Criminal Court (ICC) of an intention to request for court's authority to investigate the Situation in The Republic of Kenya pursuant to Article 15(3) of the Rome Statute.

5. On 6**^ November 2009. the Situation in The Republic of Kenya was assigned to Pre-Trial Chamber II.

6. By a majority decision the Pre-Trial Chamber II, accepted on 31^* March 2010 the Prosecutor' s request to investigate possible crimes committed against humanity in the Republic of Kenya within the scope set out in the decision.

7. The Prosecutor presented two applications to Pre-Trial Chamber II on 15*^ December 2010 under Article 58(7) seeking summons against six (6) Kenyans on charges of Crimes against Humanity allegedly committed in the Republic of Kenya.

8. On the same date 15^^ December 2010. the ICC's Chief Prosecutor addressed a Press conference re­ stating the names of the six (6) individuals who included the Applicant herein allegedly bearing the greatest responsibility for crimes against humanity in an incident of 2007-2008 Post Election Violence in Kenya.

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9. The charges affecting the applicant are that "as a prominent ODM supporte/' he used radio programme together with other two persons (William S. Ruto and Henry Kiprono Kosgey) who are "prominent leaders of the Orange Democratic Movement (O.D.M) Political Party" to prepare, plan, co­ ordinate, collect supporters and issue signals to attack those identified as supporters of the Party of National Unity (P.N.U) with effect from December 2006. That the attacks had the aim of gaining power in Rift Valley Province, and eventually Kenya, and to expel from Rift Valley any PNU supporters.

C. RELIEFS SOUGHT The Applicant applies for orders:-

10. a) That leave be granted to the Applicant to participate in the proceedings before the Honourable Court lodged by the Prosecutor under Article 58(7) of the Rome Statute. b) That orders do issue that no summons [or warrants of arrest] shall issue in respect to the Applicant before the Applicant's issues raised herein have been taken into account. c) That orders do issue that the Prosecutor does avail the applicant his (the Prosecutor's) whole imredacted copy of his Application and all supporting material made under Article 58 of the Rome Statute especially to the extent that affects him. d) That an order do issue to give access and disclosure of any material, submissions or filings generally made by any other participant in the proceedings relating to the Kenyan Situation with leave to participate in such other fillings. e) That an order do issue that the court does find that no summons or warrants of arrest may issue on the Applicant until and unless the Office of the Trial Prosecutor has demonstrated to the court that it has complied with Article 54 of the Rome Statute and more particularly that it has investigated exonerating evidence inclusive of notifying, and where possible interviewing the Applicant/suspect on the concise grounds of the charges in the manner equivalent to the effort applied by the prosecutor to investigating incriminating evidence. f) That the Pre-Trial Chamber does issue, directions without prejudice to any other prayer, on the Applicant's application for an order that Mr. Louis Moreno Ocampo be disqualified from prosecuting the Kenyan Situation and the Kenyan case including any other or further investigation and or prosecution as contemplated by Article 42(5)(7) and (8)(a) of the Rome Statute and Rule 34(1) (d) and (2) of the Rules of Procedure and Evidence for the reasons either that:-

i) The Prosecutor is acting out of ulterior motives that are unrelated to the cause of justice; or ii) The Prosecutor is incompetent; or iii) The Prosecutor is disinterested to competently investigate the Kenyan Situation and case with any desire for justice and or with any objectivity.

g) That leave does issue to present the Application orally and in writing, through his counsels on these observations, and any other or further relevant observations.

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h) That in the alternative and without prejudice to any other prayer that the Honourable Court does give such other or further directions as it may deem fit and just in the interest of justice and expedition of the case.

D. THE ISSUES OF FACT AND LAW THE APPLICANT PROPOSES TO MAKE WRITTEN AND ORAL OBSERVATION UPON i) FACTS

11. That the Pre-Trial Chamber II {PTC II) having granted the Office of the Trial Prosecutor (OTP) leave on 31^^ March 2010 to investigate the Situation in the Republic of Kenya, particularly on the Post Election Violence 2007/2008 is directly concerned with the process through which those investigations are done; particularly that the process should not be abused or used to meet political or other ulterior objectives.

12. That the International Criminal Court (ICC) and in this case the PTC II as the custodian and guarantor of the rights of all parties (witnesses, victims and suspects) has the right to ensure that the investigative powers granted to the OTP are not abused, used for political or other ulterior motives or used maliciously or with malafides.

13. That the Rome Statute Article 54(1) (a) on the establishment of the ICC demands that the OTP shall investigate both incriminating and exonerating evidence equally. However, the Prosecutor herein has deliberately failed to carry out any or any genuine investigations on exonerating evidence and circumstances in regard to the Applicant herein. Further he has denied the Applicant an opportunity to offer exonerating evidence by failing to inform the Applicant prior to the public armouncement and the Application to the court that there are grounds to believe that he has committed crimes within the jurisdiction of the Court, with adequate particulars of the said grounds. The Applicant's natural justice has been breached, and continues to be breached unless tamed by this Honourable Court.

14. Contrary to the provisions of the Rome Statute requiring the Prosecutor to conduct his own independent, fair and impartial investigations, and in breach of the mandate given to the Prosecutor by this Chamber on 31^^ March 2010 as well as the OTP's own undertaking ,the investigations by the Prosecutor on the Situation in the Republic of Kenya relating to the Post Election Violence of 2007-2008 are not independent as they are wholly based or are otherwise substantially influenced by other entities questionable reports. Some of the reports the prosecutor has relied on to present his case were preliminary and inconclusive hence should not have been a basis for any reasonable action or decision by the prosecutor.

15. Adopting an improper methodology in his investigations of;- i. Using reports not resulting from his own investigations ii. Assuming that certain people are excluded from investigations contrary to:-

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a) Article 27 of the Rome Statute which provides that a person's official capacity is irrelevant with regard to the applicability of the jurisdiction of the Court including investigations for crimes. b) Article 28 of the Rome Statute providing that commanders and superiors attract specific and higher responsibility.

16. The prosecutor did not investigate the revelations that witnesses were compromised, induced and coached to implicate the persons he has named in his application made under Article 58 of the Rome Statute, which includes the Applicant.

17. That the Prosecutor has acted in total disregard of express and implied provisions of the Rome Statute, the Rules and Regulations on the Kenyan situation breaching the Applicant's fundamental rights, precepts of balance, justice, objectivity and rule of law hence the Applicant's plea for the Pre- Trial coiu-t's intervention. The investigations in Kenya are so far manifestly ineffective, limited in scope, poorly directed, display lack of commitment to gather relevant information and evidence relating to the Situation in Kenya.

18. The Prosecutor has politicized an otherwise judicial process.

19. That it is wrong for the OTP to predetermine well in advance that in respect to investigations on the situation in Kenya and particularly with the Post-Election Violence in Kenya of 2007-2008,that:- i. It should yield between 2 and 6 people to be indicted, ii. He will have indicted people before 2010 Christmas period or otherwise in December 2010. iii. The investigations shall lead to indictments which in turn shall influence the 2012 general elections in Kenya, iv. The investigations and charges will be used to set an example to other countries in Africa and the rest of the world on how to manage conflicts especially those arising from electoral disputes. Such objective is extraneous. V. The investigations and charges will inform the next general elections in Kenya in 2012, whereby according to the Prosecutor, Kenyans will be able to elect leaders who do not condone impunity, and to use Kenya as an example to end Impunity. ii) LAW

20. Locus as a Suspect The Applicant has been named a suspect by the Prosecutor. The fact of being named by the prosecutor as a suspect coupled with the possibility of any order that may be made have and will fimdamentally affect him. As a suspect, the Applicant has inherent rights expressed and implied by the Rome Statute, this court's previous decisions and also decisions of other International Criminal Courts. It is fair and just that he be granted leave to participate in the Prosecutor's application made under Article 58(7).

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21. The Applicant, Mr. Joshua Arap Sang having been cited as a suspect by the ICC Prosecutor in the application filed under Article 58 (7) is justified to makes this application as a suspect whose rights have been, and continue to be directly affected.

22. Any acts of commission or omission, made by the Prosecutor and as may thereafter be made by the court directly affect the rights of the Applicant.

23 (a)The rights of a suspect under Article 58(7) of the Rome Statute [as to an application for summons] and Article 58(1)] of the Rome Statute [as to issuance of warrants] are not explicitly set out. The Applicant herein submits that this should not be construed to necessarily imply that the Applicant has no right of audience on a Prosecutor's application made under Article 58(7). The Applicant submits that in view of the silence, the fair and just interpretation to be given to the Article 58(7) [and 58(1)] is to allow the applicant to get audience of the court in the interest of Justice and fairness especially considering that the Prosecutor's decision has already prejudiced him, and any decision that may be made by the court subsequently affects his rights.

(b) The Applicant's prejudice is aggravated by the fact that the Prosecutor filed his application publicly and also publicized the names of people he deemed to be suspects. The Applicant's request to be heard ought to be enhanced by the prejudice arising from the publicity the Prosecutor invited onto an otherwise possibly ex-parte process.

24 The fact that the Rome Statute gives a suspect right to be heard before a decision to charge him imder Article 55(2) [questioning in the course of investigations], and thereafter much after he has presented himself or has been presented to court [under Article 59 and 60] at the point of confirmation of charges under Article 61 as read with Article 67 implies that the rights that obtain at investigation and thereafter at confirmation of charges would equally and continually flow and obtain over the interim period of consideration of the application under Article 58(7) [and 58(1) J. An inverse view that an application fued under Article 58 suspends the rights of a suspect would be exceedingly technical at the expense of fairness and Justice.

25. (a) Natural Justice justifies a finding that before the court can make any decision imder Article 58(7) that will affect the rights of the Applicant as a suspect it would be fair and just that he should have been heard.

(b) As it is, the Prosecutor has already violated the Applicants right to be given a hearing prior to making a decision that has gravely affected his rights, in this case, the decision to lodge an application seeking summons under Article 58(7).

26. ICC and other Intemational Criminal Courts have held that proceedings and or process whose effect is to affect the rights of an individual does justify affording the subject of the proceedings and or process an opportunity to be heard.

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27. The ICC Pre-Trial Chamber and Appeals Chamber have held in the past that proceedings under Article 58 can be heard inter-parties. This ratio was upheld in the case of the Prosecutor -vs- Omar Al Bashir, both at pre-trial chambers and Appeal Chambers, ICC-02/05-01/09-62: ICC-02/05-01/09-65- Red: ICC-02/05-01/09 O A 28; and ICC-02/05-01/09 OA9. The Applicant herein is entitled to pray to be given similar treatment and similar application of the law, with the consequence of affording him a hearing under Article 58, as was done in the said case of Prosecutor-vs-Omar Al Bashir. Withholding similar audience to the Applicant hazards an impression of unjustifiable differential treatments, and inconsistent predisposition towards Applicants approaching the court.

28 a) In the past the courts have afforded Amici, Victims and other entities a standing to make submissions in ex-parte and or pre-trial proceedings. This accommodation was manifested in the case of; Prosecutor-vs- OmarAl Bashir, ICC-02/05-01/09 OA9, and in The Situation in Congo, Application for participation in proceedings by victims, ICC-01/04-135-tEN. Amici, Victims and other parties have lesser rights at risk and inferior exposure to prejudice compared to a suspect. The Applicant submits that there is no conceivable justification in fact, equity and law to deny a suspect a right of audience already readily afforded to persons in the form of Amici, Victims and other parties, who have lesser or no risk of prejudice and harm.

b) The Applicant's submissions herein takes cognizance of the fact that the ICC court found in the case of "The situation in Congo" ICC-01/04-135-tEN that victims are not "parties to proceedings" hence their participation in any process is limited to participating to the extent of matters that affect them personally. The Applicant herein being a suspect is a party and a central figure in proceedings and has superior entitlement to be heard on his observation compared to a victim and or amici and or other party.

c) In "The situation in Congo", "Decision on the Application f or participation in proceedings of PRS1-6 dated 17*^ January 2006" the pre-trial chamber and Appeals chamber stated that victims have an option to seek to participate in a matter before the JCC court right from the stage of investigations. The significance of this decision is that as early as the investigative stage there do obtain "proceedings" upon which victims can anchor an application to seek leave to be allowed to make observations.

In the circumstances the application under Article 58 seeking summons (or warrants of arrest) are clearly "proceedings" to which victims can seek audience. A suspect in the situation of the Applicant herein has a better standing (than a victim and or amid) to be heard on the "proceedings" proposing to yield summons (or warrants of arrest) under Article 58.

29 a) The Appeals Chamber in Prosecutor-vs- OmarAl Bashir, ICC-02/05-01/09 OA28 already found that a main criteria used by courts to decide whether or not to grant an applicant audience is whether or not such applicant's "personal interests are affected". Whenever there are "personal interests" that will be "affected" the court's inclination is to give an applicant audience to present his observations. In such situations the court would not be too limited in making their decision to give audience to such an applicant who has "personal interest "by provisions of law prescribing that the process is ex-parte. The applicant herein submits that he has infinite "personal interests" that have already been affected and will

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continue to be "affected" and deserves to have his observations views and concerns to be considered on the said Prosecutor's application. b) The Appeals chamber found merit and granted leave to be heard to an applicant applying for an opportunity for "putting forward another view to that of the Prosecutor''/ " alternative view" in Prosecutor-vs- OmarAl Bashir, ICC-02/05-01/09 OA9. In that case the fact that the Prosecutor would otherwise be presenting an ex-parte motion under Article 58 coupled with the fact that the applicant was seeking to contest the integrity and quality of the material sought to be used by the Prosecutor to present his motion constituted a significant basis to allow an "alternative view". The court took the view that "another view" would usefully edify material the court would use to decide.

The applicant herein seeks an opportunity to put forward an "alternative view" ["another view"] to what the prosecutor would have otherwise presented ex-parte. The Applicant submits that applying the ratio in the Omar's case he deserves to be heard on the application lodged by the Prosecutor under Article 58 on the ratio emanating from the decision of the Appeals chamber.

30. Under Article 58 of the Rome Statute, the Pre-Trial Chamber has to satisfy itself that "reasonable grounds to believe" that the applicant "committed crime alleged" before issuing summons (or warrants of arrest).

It is submitted that the applicant's observations views, and concerns on matters of facts and law would usefully inform any decision the Pre-Trial Chamber may arrive at under Article 58 of the Rome Statute, as to whether or not to issue summons on the Applicant herein.

31. There is no conceivable prejudice that either the Prosecutor or any other person or entity would suffer if the Applicant is granted leave to access all available material the Prosecutor proposes to use and is granted audience to present his observations, views and concerns.

32. The Prosecutor's application under Article 58 of the Rome Statute is weighty and justifies exhaustive consideration prior to any decision being made both in fact and in law.

33. The Applicant submits that proceedings under Article 58 of the Rome Statute are not necessarily ex-parte. The provisions of Article 72 of the Rome Statute highlight and clarify this point. Article 72 (5) (d) and 7(a)(i) explicitly state when proceedings are to be conducted ex-parte. Similar explicit words are not used in Article 58. If it was intended that Article 58 were to be ex-parte then it would have been expressed in explicit and manifest maimer adopted ai Article 72, or terms as nearly explicit as those used therein.

34. The Applicant has noted the Pre-Trial Chambers' decision made on 18*^ Tanuary 2011. Situation in the Republic of Kenya, ICC-01/09-35 and submits that the said decision can be distinguished from this Application on the following grounds:-

a) Unlike this Application made under Articles 58 and 42(5) (7) and (8) of the Rome Statute and Rule 34(l)(d) and (2) of the Rules of Procedure and Evidence the decision of 18^^ Tanuary 2011 was made pursuant to an application made under Article 103 of the Rome Statute.

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b) The decision was arrived at on the assertive ground that proceedings under Article 58 are ex- parte. This observation overlooked previous decisions made by the court:-

i. Expressing and implying that proceedings under Article 58 are not necessarily ex- parte, especially the case of Prosecutor Vs OmarAl Bashir. ICC-02/05-01/09 OA9 ii. Expressing and implying that even where the proceedings would be ex-parte, the greater interest of justice obligates a court to take into account the views of the other side most especially where as is the case herein, the rights of the applicant would be fundamentally affected by a decision to be made in such ex-parte process.

c) The decision did not take into account jurisprudence of other international Criminal courts where the anxiety to secure the rights of a suspect justifies his being heard, especially where the consequence might yield adverse finding.

d) The decision failed to note that a process of fair trial commences at investigative stage, and application for summons is a significant stage in such process of fair trial warranting that an applicant be afforded an opportunity to be heard on the application under Article 58.

35. The Applicant endevours to make observations to the extent of:-

i. Seeking the court's finding on the extent and scope of a suspect's rights under Article 54 and 55 of the Rome Statute. ii. Seeking to contest the integrity and quality of material the prosecutor seeks to use to get summons in his application made under Article 58 of the Rome Statute. iii. Seeking the rights to access all information the prosecutor holds on the case proposed against him to enable him be fully acquainted with the case and to enable him usefully make his observations, views and concerns on the case made out against him and or respond to the case., with leave to participate in any such proceeding. iv. Seeking urüimited access to all information lodged and filed at the court's registry on the Kenyan situation and Kenyan case with Leave to participate in any such proceedings. V. Seeking to make observations, views and concerns on the conditions the prosecutor has sought against the applicant (as to not contacting other suspects personally and not contacting victims. The Applicant has no objection to supplying addresses. The applicant in any event doesn't know who the witnesses are, or who are victims. He is in fact a victim himself). The Applicant contends that the said conditions are unjust, unfair and unreasonable and serve no bonafide and useful purpose. vi. Seeking to contest the prosecutor's purport that Kenya is a proper case for trial for crimes against humanity, in fact, equity and law.

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iü) THE URGENCY

36. This application is urgent as the prosecutor has stated in explicit and unequivocal terms that he has completed his investigations and presented an application on 15*^ December 2010 to the Pre-Trial Chamber II [under Article 58 of the Rome Statute] to indict six (6) Kenyans, the Applicant being one of them.The Prosecutor has sought to indict despite the fact:-

a) That the Prosecutor has not expended any effort to proactively investigate available exonerating evidence as prescribed by Article 54(1) (a). b) The Applicant has not been informed with reasonable and adequate particulars the reasons and grounds upon which the prosecutor deems the Applicant a suspect culpable for crimes within ICCs jurisdiction as contemplated by 54(1) (a) Article 55(2) (a) as read together with Article 58(2) (a). c) The Prosecutor insists in his affront of his mandatory obligations under Article 54(1) of the Rome Statute. If the Prosecutor is heard in the application to the court under Article 58 of the Rome Statute for indictment then the Applicant shall suffer the irreparable injury and prejudice of being presented to court to stand trial without his exonerating evidence getting to be considered in breach of the fundamental rights of the Applicant and in breach of the Rome Statute. d) The Prosecutor will continue breaching the Applicant's rights unless restrained and tamed by the court pursuant to the Rome Statute and the scope of the investigations he was authorized to conduct by the court's decision of 30^ March 2010.The Prosecutor has breached and continues to breach the Applicant's rights in contravention oi Articles 54(1) (a) and 54 (1) (c) of the Rome Statute. e) The Applicant prays on urgency basis for leave to urge this Honourable Pre-Trial Chamber II to restrain the Prosecutor from seeking any orders for summons (or otherwise warrants) until and unless he will have been accorded his fundamental rights under the Rome Statute including the provisions of Article 54 (1) (c) of the Rome Statute. iv) LEVEL OF CONFIDENTIALITY. UNDER REGULATION 24(2) OF THE REGULATIONS OF THE REGISTRY AND REGULATION 23(1) OF THE REGULATIONS OF THE COURT AND ARTICLE 55(2) AND 58 OF THE ROME STATUTE

37 a) The Applicant does not on his part seek any form of confidentiality on this application and the enclosures thereto.

b) The Applicant therefore waives on his part any entitlements based on the information and particulars contained in this application.

The Applicant's proposed observations are substantial, weighty and relevant hence the leave will add valuable insight on the Court's scope in making its decision on the matter at hand, and the submissions to be adduced will avail the court an alternative view.

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c) REASONS WHEREFORE THE APPLICANT PRAYS:-

a) That leave be granted to the Applicant to participate in the proceedings before the Honourable Court lodged by the Prosecutor under Article 58(7) of the Rome Statute. b) That orders do issue that no summons [or warrants of arrest] shall issue in respect to the Applicant before the Applicant's issues raised herein have been taken into account. c) That orders do issue that the Prosecutor does avail the applicant his (the Prosecutor's) whole unredacted copy of his Application and all supporting material made under Article 58 of the Rome Statute especially to the extent that affects him. d) That an order do issue to give access and disclosure of any material, submissions or filings generally made by any other participant in the proceedings relating to the Kenyan Situation with leave to participate in such other fillings. e) That an order do issue that the court does find that no summons or warrants of arrest may issue on the Applicant until and unless the Office of the Trial Prosecutor has demonstrated to the court that it has complied with Article 54 of the Rome Statute and more particularly that it has investigated exonerating evidence inclusive of notifying, and where possible interviewing the Applicant/suspect on the concise grounds of the charges in the manner equivalent to the effort applied by the prosecutor to investigating incriminating evidence. f) That the Pre-Trial Chamber does issue, directions without prejudice to any other prayer, on the Applicant's application for an order that Mr. Louis Moreno Ocampo be disqualified from prosecuting the Kenyan Situation and the Kenyan case including any other or further investigation and or prosecution as contemplated by Article 42(5)(7) and (8)(a) of the Rome Statute and Rule 34(1) (d) and (2) of the Rules of Procedure and Evidence for the reasons either that:-

i) The Prosecutor is acting out of ulterior motives that are unrelated to the cause of justice; or ii) The Prosecutor is incompetent; or iii) The Prosecutor is disinterested to competently investigate the Kenyan Situation and case with any desire for justice and or with any objectivity.

g) That leave does issue to present the Application orally and in writing, through his counsels on these observations, and any other or further relevant observations. h) That in the alternative and without prejudice to any other prayer that the Honourable Court does give such other or further directions as it may deem fit and just in the interest of justice and expedition of the case.

DATED AND SIGNED IN NAIROBI THIS 9TH DAY OF FEBRUARY 2011

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