AG differs with ICC Prosecution over court co-operation

By FELIX OLICK

NAIROBI, KENYA: Attorney General Githu Muigai has differed with the Prosecution at The Hague over co-operation with the court even as the Government moved through the African Union to terminate the two Kenyan cases.

Githu dismissed the prosecution claim that the Government had failed to furnish it with critical information as ‘outright unprofessional’.

Speaking during a panel discussion regarding the twin cases at the International Criminal Court (ICC), Githu said the Kenya Government has had principled interaction with the court.

“From complaints now being raised, I can only say that the case was not ready from the beginning or as the Belgium Judge recently said, ought not to have been brought before the court,” Githu said yesterday at Daystar University.

Sitting on evidence

He insisted that at the beginning, the prosecution said that they had all the evidence to prove the case and that their witnesses had been moved to Europe.  “But the narrative has changed. Now they insist the Government is sitting on the evidence. Where did the initial evidence go?” posed Muigai. But in a quick rejoinder, Prosecution Head of Jurisdiction, Complementarity and Cooperation Phakiso Mochochoko who was participating via video link from The Hague differed insisting the Government has clung to critical evidence. He said the co-operation they have received from the Kenya Government falls short of what they expect from a State party. “Co-operation must be tangible, it must be concrete, it must be timely,” said the prosecution official.

At the heart of the controversy is request by ICC Prosecutor Fatou Bensouda to be furnished with financial statements of the suspects as well as to interview police chiefs who manned post-election violence hotspots.

But Githu insisted that Government could not enforce a request regarding financial statements without a court order.  But the Government Chief Legal Advisor remained mum on the Government latest assault to rally the AU to assist in terminating the cases against President Uhuru Kenyatta and Deputy President William Ruto.

In a strongly worded memorandum presented to the African Union on Thursday, the Government urged the AU to urge the ICC to terminate the cases against Uhuru and Ruto or refer it in view of changes to Kenya’s judiciary.

Changed circumstances

“We request the countries of African Union and all friendly nations to individually and collectively acknowledge the changed circumstances in Kenya in particularly the democratic outcome of the 2013 election…and further urge the ICC to terminate the cases,” the memorandum reads in part.