State requests access to evidence against Ocampo Six

Business
By | Oct 08, 2011

By Alex Ndegwa

The Government wants access to all evidence and witnesses in the crimes against humanity cases involving six suspects before the International Criminal Court.

It has petitioned the Pre Trial Chamber to turn over the evidence, including all confidential un-redacted materials provided by the court’s Chief Prosecutor Luis Moreno-Ocampo, to help ongoing national investigations and prosecutions into post election violence.

The Government says there are over 3,500 pending investigations, which include the six suspects before the ICC that "must be fast-tracked." The move could be viewed as another attempt to force The Hague-based court to cede jurisdiction of cases.

UK lawyers Geoffrey Nice and Rodney Dixon, who were hired by the State to block the ICC cases, filed the second request for assistance and cooperation from the ICC under the principle of complementarity. The application was lodged four days after conclusion of confirmation of charges hearing in the first case, but had not been made public until Friday.

Court proceedings during the confirmation of charges hearings at the ICC. [PHOTO: FILE/STANDARD]

In the application dated September 16, the Government requests all statements, documents and other evidence in the possession of the court in the two Kenya cases.

Confirmation of charges hearing in the first case involving Eldoret North MP William Ruto, Tinderet’s Henry Kosgey and radio presenter Joshua Sang concluded on September 12. Proceedings in the second case involving Deputy Prime Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura and former police chief Hussein Ali closed on Tuesday.

ICC judges Ekaterina Trendafilova, HansPeter Kaul and Cuno Tarfusser will rule in 90 days whether all or any of the suspects will be committed to trial for crimes against humanity or have the charges dropped.

Attached report

In the application, the Government has attached the latest report with two annexes detailing national investigation into the six suspects before the ICC. It also cites the earlier report of May 5, which "notes the pending investigation into Mr Ruto as well as the steps that are being taken to investigate the other suspects before the ICC."

The Government insists the recent report of July 1, which it observes has not been previously submitted to the pre-trial chamber, provides an update on investigation into the six suspects.

"The report notes what inquiries are presently being conducted, the witnesses who are being interviewed, the sites being visited, the documentation being reviewed and that the suspects are being interviewed.

It also identifies further investigative tasks to be undertaken, about which updated reports will be provided," reads part of the application. Among the evidence requested to assist in the reported ongoing probe are all confidential unredacted materials and transcripts of proceedings during the confirmation hearing in the first case.

These are materials Moreno-Ocampo would like to only divulge if the cases go to full trial and he will put up a legal fight to keep them from Government and the suspects, some of who still hold influential positions in the Government.

Such materials, it argues, would greatly assist to advance investigations and prosecutions of unlawful conduct during the post-election violence.

"In particular, the materials include evidence, which may not otherwise be available to the Government. To the extent that the court is relying on anonymous witnesses who do not presently reside in Kenya, this is evidence, which the Kenyan authorities cannot access without the assistance and cooperation of the court," states the application.

On witness protection, the State says if any protected measures have been adopted for any of the evidence requested, they can be considered.

But it adds that arrangements can be made with the appropriate Kenyan authorities to ensure that the interests of victims and witnesses are protected in the national investigations in accordance with Kenya’s laws and witness protection programmes.

"An elaborate witness protection and support system has been adopted and is operational in Kenya... The ICC Prosecutor has previously relied on Kenyan witness protection programmes," states the application.

"As confirmed by the attached annexes, the investigations currently being conducted by the Kenyan authorities include the six suspects presently before the ICC as well as thousands of other suspects in Kenya."

The report notes that the 3,500 pending investigations include up-dated details on the gender based violence cases.

According to the Government, the crimes under probe include murder, gender based violence, arson, robbery and burglary, incitement, possession of weapons and preparation to commit a felony.

"These cases cover conduct that constitutes serious crimes under the national law of Kenya. In addition, the cases involve the same conduct within the same locations for post-election violence that are the subject of the situation in the Republic of Kenya before the ICC," argues the application.

Apparently, the assertion is meant to address the reason for the rejection of the earlier request that the Government had not satisfied the requirement for this test. The application specifies materials provided to the court since the first request for assistance in June that have been referenced in the confirmation of charges proceedings in the two cases.

The Pre-Trial Chamber rejected the first request in June citing the lack of any documentary proof to show the Government was investigating the six suspects for the crimes.

An application by the Government on July 4 for leave to appeal against the decision has been pending ever since. The lawyers state the second request for assistance is filed without prejudice to the pending application for leave.

The Government contends the request satisfies the requirements of Article 93(10) and all of the other relevant provisions including Article 96 and Rule 194.

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