ICC came calling for our evidence, former Truth commissioner reveals

**Former ICC prosecutor Moreno Ocampo and Prosecutor Fatou Bensouda during a hearing at the ICC. [File, Standard]**

The International Criminal Court (ICC) wanted the Truth, Justice and Reconciliation Commission to turn over the evidence they had gathered in the course of their mandate, a former commissioner Ronald Slye reveals.

In his explosive book exclusively obtained by Sunday Standard, Slye says the Rome-based court initially dithered in engaging the commission but eventually turned to it for help when they got stuck with the Kenyan cases.

He admits that the commission indeed received information related to the ICC cases at the time but there was no framework on how to share it. Majority of the commissioners were also hesitant to get involved in the Kenyan cases as much as the government itself kept dragging the commission in its ICC filings.

Testimonial immunity

He reveals that sometimes in March 2010, commission vice chair Betty Murungi met with members from the Office of the Prosecutor in New York.

“She was informed that the then prosecutor, Moreno Ocampo, would be in Kenya within the next two weeks and that he would like to meet with us. No one in the commission raised an objection to such a meeting,” he writes in The Kenyan TJRC; an Outsiders View from the Inside.

Later, however, the meeting was cancelled by the prosecutor without explanation.

There would be no other formal meeting between the commission and the prosecutor, a situation Slye describes as unfortunate because there were certain overlaps in their respective mandates.

The overlaps, Slye says, had the potential to spoil for the other and it would have been better if the two institutions drew up clear lines for each other. For instance, while TJRC provided testimonial immunity for people who turned out before it, fears were rife as to whether such immunity would be binding to the ICC.

This issue was critical because, as Slye reveals in his book, officials from the United Nations were also pressuring the commission to reach out to the Ocampo Six to encourage them to testify before the commission. None took the offer.

“It was possible that, although the ICC was not bound to recognise this immunity as a matter of law, it might exercise its discretion and not take advantage of testimony or other information provided to the commission,” Slye, who is also a law professor, writes.

Slye argued that given the government was already using them in its fight against the ICC, it was much more prudent for the commission to try and influence how it was being used by getting clear terms of engagement with the court.

“Given later events with respect to interference of President Uhuru Kenyatta’s office with respect to ourfinal report, it is possible that some of the commissionerswere reluctant to engage in activity that would, or would at least appear to, work against the interests of the ICCsuspects,” he says.

In June 2012, officials from the Office of the Prosecutor came calling again, this time to Commissioner Slye. They did so by having a friend of his from his law school days who was now working in the office of the prosecutor reach out to him.

They wanted access to evidence TJRC had collected over the course of its mandate.

“I informed the ICC officials that I would be willing to approach my fellow commissioners to see if they would be willing to give them access to our materials. I told them candidly that I thought such a request would be quickly refused, as I was the only commissioner who would have acquiesced to such an arrangement,” he says.

He reveals that he later agreed with the ICC officials not to raise the issue with the commissioners “and as far as I am aware, the ICC never reached out to us again.”

He notes that TJRC was created in the context of a struggle between the Kenyan government and the ICCover whether and how to hold accountable those most responsible for the 2008 post-election violence.

And although this could have been viewed as an example of positive complementarity, that is the ability of ICC to foster domestic mechanisms of accountability, it thrust the commission into the heart of fights that ended up shaping its destiny.

“The government’s commitment to an effective and robust truth commission was as problematic as their commitment to creating a domestic tribunal. As the weaknesses of the ICC cases became more apparent, the government’s commitment to accountability lessened even more,” he writes.

The eventual disintegration of the cases emboldened the government’s commitment to impunity.