State prepares response to ICC Prosecutor Fatou Bensouda’s allegations

By Roselyne Obala

Kenya: The Government has been allowed to respond to accusations that it has refused to co-operate with the International Criminal Court (ICC ) prosecution in President Uhuru Kenyatta’s case.

The Chamber V (b) of the ICC has invited Attorney General (AG) Githu Muigai to respond to allegations by Chief Prosecutor Fatou Bensouda that his office has failed to comply with its co-operation obligations.

The AG will make presentations on Thursday when a Status Conference is scheduled.

Though last Tuesday Prof Githu identified three specific issues to make submissions on, the judges have granted two.

Githu had requested to ventilate on non-cooperation claims raised by the

prosecutor in the context of the current proceedings, the role of the President and Head of State in Kenya vis-à-vis other constitutional bodies as may be relevant to the issue of cooperation with the court and and the separation of powers and independence of various organs of Government under the Kenyan Constitution and other laws as they relate to the issue of cooperation with the court.

The three-judge bench, led by presiding Judge Kuniko Ozaki, has given a green light to Githu to submit his observations on the second and third issues by Wednesday by 7pm.

Third issues

“The court invites the competent authorities of the Government of the Republic of Kenya to submit their observations on the second and third issues identified in the Rule 103 request no later than 1600hrs on February 12,” read part of the ruling.

The judges ordered that any responses to the observations filed by the Government are to be filed no later than seven days from the date of the notification of the observations.

The decision comes two days to the second Status Conference scheduled for Thursday this week to address prosecution’s application. On Wednesday last week, the Chamber held a Status Conference to address, inter alia, the issues raised by Bensouda.

She has requested the Chamber to reject the defence’s request to terminate the proceedings, and instead rule on the application failed by the prosecution accusing Kenya of failing to comply with its co-operation obligations and order such compliance and adjourn the case against Uhuru until the Government complies with its obligations.

The Chamber has, however, noted that it would be appropriate to receive Government’s submissions prior to the next Status Conference on February 13.

The judges, however, noted that the Government has already extensively addressed the question of its alleged non-cooperation in its observations.