We are not party to anti-ICC suit, says lawyers

Business

By Judy Ogutu

Senior government officials who are expected to record statements relating to the post-election violence say they were not consulted in a suit seeking to block the same.

On Monday, through their advocates, Evans Monari and Kennedy Ogeto, the Provincial Commissioners and police chiefs informed High Court Judge, Justice Daniel Musinga that they were not consulted by the two businessmen who are seeking to stop Lady Justice Kalpana Rawal from taking their evidence.

"Our clients were not consulted with regard to this application and petition and they are affected parties. The impression being created in the press is that they perhaps instigated this petition and that is not so. They will object to the continuance of this petition," Monari said in court.

But in response, the two applicants, Jackson Mwangi and James Ndirangu Kuria, said that the case in court is of public interest and under the new constitution, a person can reinforce rights notwithstanding absence of the affected party.

The two, through Muchoki Kangata and Company Advocates, have named the Attorney General and Justice Rawal as respondents to the suit.

On Monday, Director of Public Prosecutions, Mr Keriako Tobiko informed the judge that the case would be mentioned on Tuesday before Justice Rawal for purposes of establishing the progress of an application filed at the ICC by lawyers appearing for the PCs and Provincial Police Officers (PPOs).

"Counsel for the security officials had challenged certain orders and they filed an application before ICC. They then sought deferment of taking statements awaiting determination of the matter. The mention is to establish how far they have gone in the matter," Tobiko explained.

Tobiko, who appears together with State counsel Edwin Okello also sought for more time to consult on the matter said the application raises substantial issues of law, which calls for thorough preparation.

According to the two applicants, " the attendance of any Kenyans before Justice Rawal for evidence taking shall be perpetuating of an illegality and contravention of the Constitution."

They said they have established the Rome Statute establishing the ICC and other rules including those of procedure and evidence are contrary to the Constitution.

Last week, they had sought for orders of prohibition against Justice Rawal from taking or recording evidence or issuing any summons "to any Kenyan" for purposes of taking evidence pursuant to any ICC process pending determination of the application. Justice Hannah Okwengu declined to issue the temporary orders and instead directed them to serve the respondents and appear in court on Monday.

They argued that the ICC rules, "which enable the judge to take the evidence are illegal in that they provide that all records and documents relating to the proceedings before the ICC shall be confidential and kept under seal thus conflicting with article 35 of the constitution on access of information."

Justice Musinga directed the two to serve the 10 senior individuals with the suit papers through their advocate. Among those to be served include PCs Ernest Munyi (Coast), Hassan Noor Hassan (Rift Valley), James Waweru (Nairobi) and Paul Olando (Nyanza).

The Provincial Police chiefs who were in the office at the time include Grace Kaindi [Nyanza], King'ori Mwangi (Coast) and Njue Njagi who was in Nairobi at the time.

More than 1,133 people were killed and over 650,000 evicted from their homes in two months of violence that followed the disputed 2007 presidential election. The chaos ended after a power-sharing deal that brought in the Grand Coalition Government.

The case will be mentioned on January 28.

Ends

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