AG defends State co-operation on The Hague cases

By Peter Opiyo

Nairobi, Kenya: The Attorney General has dismissed claims by International Criminal Court Prosecutor Fatou Bensouda that her investigations of the 2008 post-election violence were frustrated by the Government.

In a detailed submission to the ICC’s Trial Chamber V filed on the eve of President Uhuru Kenyatta’s and Deputy President William Ruto’s inauguration on Tuesday,  AG Githu Muigai takes on Bensouda on her claims that she has received little or no cooperation from the Government to tie up the loose ends of her case.

The response came as the ICC on Wednesday issued a strong denial of claims by Uganda’s President Yoweri Museveni that the two Kenyan cases at The Hague were influenced by politics.

“The International Criminal Court is a purely judicial institution. No political consideration can be taken into account when ICC Judges, representing the different regions of the World, are issuing their decisions,” said Mr Fadi El Abdallah, Spokesperson and Head of Public Affairs Unit at the ICC (see separate story on this page).

President Uhuru Kenyatta and Deputy President Ruto are accused of crimes against humanity arising from the 2008 post-election violence. Ruto’s co-accused is journalist Joshua Sang.

Bensouda dropped charges against President Uhuru’s former co-accused, Francis Muthaura, who was at one time the Head of the Civil Service and Secretary to the Cabinet, for lack of enough evidence.

The Prosecutor had claimed the government denied her investigators access to details on the assets of Uhuru, Ruto and Sang. She also said getting medical records of the victims of the violence, accessing crucial security documents and interviewing top police security officials has been nearly impossible.

But the AG says some of the requests by Bensouda cannot be met because they touch on national security or require court orders to execute.

He says a request by the prosecution on April 6, 2011, requiring President Uhuru to provide complete information about his finances, including assets and liabilities and identities of all to whom money or property is owed was dismissed by Pre-Trial Chamber II on the basis that it lacked justification.

“The Republic of Kenya contends that there has to be a court order in place in order to fulfill this request,” the AG wrote in his submission to Trial Chamber V.

Of the demand to interview 10 senior security officials, the AG says the matter is the subject of a case in the High Court that is yet to be decided.

“The court order is in force until the matter is heard and determined, placing this request in abeyance,” argues the AG.

Facilitated request

And on a request to access medical facilities that treated victims of the post-poll violence and screening medical records, the AG insists ICC investigators were granted access to and even interviewed the relevant medical personnel.

“The Kenyan Government did facilitate this request and the OTP (Office of the Prosecutor) did access the medical facilities and were able to screen the files as requested in December 2012,” says the AG.

Githu also told the Trial Chamber V in his submission, that the government facilitated the Prosecution’s request to screen all documents related to violence in October last year when ICC Prosecutor Fatou Bensouda visited the country and said she was seeking crucial documents from the government to execute the Kenyan cases.

“The Kenyan government has provided the Prosecutor with all legitimate documents and materials that could be provided under the Rome Statute, the Constitution and the laws of Kenya,” the AG argues his case.

In the submission dated April 8, 2013, Githu says the government was compelled to file the submission with the Chamber following Bensouda’s observations and submissions to the Court on Uhuru’s case regarding the status of cooperation on the matter.

On March 8, 2013 the Prosecutor made additional observations regarding the status of Uhuru’s case narrating how her office’s attempts to interview senior police officers were thwarted. Her office could also not access relevant documentary evidence relevant for Uhuru’s role in the violence, from the government, she said.

And at the Status Conference on March 11, 2013, the Prosecutor said part of the reason that informed the dropping of charges against former Head of Public Service Francis Muthaura was due to frustration by the government in obtaining relevant evidence on his case.

“Despite assurances of co-operation with the Court, the Government of Kenya has provided only limited assistance to the Prosecution and they have failed to provide the Prosecution with access to witnesses, or documents, which may shed light on Mr Muthaura s case,” the Prosecution then told the Chamber.

However, the AG now says the government gave a commitment to co-operate with The Hague-based court, as is required in the Rome Statute.

“The Kenyan Government submits that, even prior to Pre-Trial Chamber II’s authorisation to the Prosecutor to open an investigation in Kenya, it has fully provided cooperation, support and assistance to the Court in accordance with the Rome Statute and the “fundamental legal principles] of general application” that are operative in the Republic of Kenya. This full cooperation with and support and assistance to the Court, including the OTP, continue to this day,” the AG wrote in the submission.