Bensouda: State officials reluctant to release important evidence

By Felix Olick

KENYA: ICC Prosecutor Fatou Bensouda has revealed that certain individuals, including Government officials and employees, who hold critical evidence are inaccessible.

Bensouda also conceded that she has not been given critical documents such as medical reports, which contain post-mortem details of victims killed at the height of the 2007/2008 post-election violence.

“Certain categories of individuals, including Government officials and employees, for whom States must specifically authorise access, in some instances governmental authorisation were only recently received and the individuals have not yet consented to be interviewed,” she told the Trial Chamber V.

The ICC Prosecutor, who made an extensive tour of the country last October, also expressed frustrations that she has not been able to access certain financial records.

Sources said ICC investigators had been denied information on the assets and wealth records of the four suspects, two of whom are in the race to State House.

MISSING DOCUMENTS

“Documents, including medical, financial, and official records have repeatedly been requested from the Kenyan Government but as of this date, they have not been provided,” she said after submitting the evidence and list of witnesses.

In December 2010, ICC detectives failed to get critical statements from provincial commissioners and senior police officers who served in hotspots during the 2008 post-election violence.

The PCs were Hassan Noor, Ernest Munyi, James Waweru, Paul Olando, and Japhter Rugut.

The officials, through their lawyers Evans Monari and Ken Ogeto, refused to answer questions from the ICC expressing fears their statements could be used against them at The Hague.

This was despite assurances by Justice Lady Kalpana Rawal, who was appointed to preside over statement taking.

Previously, the Government held onto the minutes of the National Security Council meetings during the height of the violence. The ICC later obtained copies of the minutes.

There has also been a tug-of-war between the ICC and the Government over evidence from security officers on the violence. A quasi-judicial team headed by Justice Rawal was formed to gather evidence on the violence from police chiefs, but it flopped after a court injunction prevented the officers from giving evidence.

As a result, the prosecution gave a notice to the Chamber that it may seek leave to amend the list of witnesses and evidence if it obtains certain materials that it has not yet had accessed. When she visited Kenya,

Bensouda sought assurances from President Kibaki and Prime Minister Raila Odinga that Kenya will co-operate with The Hague-based court.

She also raised concerns over protection of witnesses and pushed for the release by the Government of confidential security information relevant to the two Kenya cases.