By Alex Ndegwa and Cyrus Ombati
Three of the 'Ocampo Six' may have defied Criminal Investigations Department summons to avoid distractions ahead of confirmation of charges hearings at The Hague.
Head of Civil Service Francis Muthaura’s lawyers have said their client would not take part in "eleventh hour" investigations that subject him to a parallel probe.
Deputy Prime Minister Uhuru Kenyatta and Postmaster General Hussein Ali are also unlikely to appear before detectives at the CID headquarters.
Godfrey Musila, an international criminal lawyer familiar with International Criminal Court operations (ICC), says with confirmation of charges hearings due, defence lawyers may have decided to concentrate on missions that aid their cases.
"Now the defence teams should be looking for either rebuttal evidence or evidence that weakens the prosecutor’s case. Anything else is a sideshow that does not help your case at the ICC," Dr Musila told The Standard On Saturday.
Muthaura’s lawyer Karim Khan advised his client against recording statements with the local police until after the hearings beginning on September 21.
"It will be reckless and unfair for him to start dealing with an eleventh hour investigations being conducted by the local police. Local police can wait for now," said Khan, adding his client cannot face two jurisdictions investigating the issue.
Musila added: "You also don’t want to give evidence that might be used against you. The Hague might fail to confirm the charges only for local authorities to pursue you on lesser charges."
But political analyst Mutahi Ngunyi argues the Government officials were not going to appear before the police in investigations prompted by crimes against humanity cases, which the State has challenged.
"Who is the CID?" Mutahi posed, adding some of the officials call the shots in Government and it would appear like "they are interviewing themselves".
Muthaura and Uhuru did not respond to the Government filing of an Updated Investigation Report to the ICC, despite Appeals Chamber prompting.
The Government had sought last month to submit the report on investigations against the Ocampo Six to support its appeal against the dismissal of its admissibility challenge.
The ICC Appeals Chamber had on July 14 ordered Mr Muthaura, Mr Uhuru and Mr Ali to file, within five days, any observations as to whether it should accept or dismiss the Updated Investigation Report.
ICC records show only Ali filed the defence observations in which he endorsed the Government’s position and made no further submissions.
But Musila explains it may well be the lawyers of the other two did not find a meaningful purpose to file their clients’ observations, or they could have felt Ali’s position represented them as well.
The Appeals Chamber has since rejected the report thus weakening Kenya’s appeal against the Pre-Trial Chamber’s decision to reject the admissibility challenge of the cases.
Kenya had requested the Appeals Chamber to accept the report "as further confirmation that national investigations into the six suspects are ongoing and progressing expeditiously".