Kenya Files Complaint Against ICC Prosecutor

ICC Prosecutor Sued
Kenya’s President Uhuru Kenyatta and his deputy William Ruto are facing what some see as politically motivated charges at the ICC

AFRICANGLOBE – The Government of Kenya has written to the ICC to complain about the conduct of Chief Prosecutor Fatou Bensouda.

In his submissions, Attorney General Githu Muigai says Bensouda has disgraced the Kenyan government by repeatedly claiming that it was not cooperating fully with her office.

Githu cited recent comments by Bensouda that part of the reason she dropped the case against former Cabinet Secretary Francis Muthaura was lack of cooperation from the Kenyan government.

He wants all parties in the two Kenyan cases ordered to file on record their complaints against the Kenyan state so that it can respond and put matters straight.

“The Government of Kenya deprecates any attempt by the Prosecutor of the ICC to explain away or excuse evidential gaps or difficulties in her case as being attributable to action or inaction by the Government of Kenya,” he said.

Githu said the government has complied with all 37 requests by the prosecutor apart from two—those that relate to the request that the government furnish the court with financial information on the three suspects and statements of the interviews of ten police officials.

On the financial information, Githu said “Kenya contends that there has to be a court order in place in order to fulfill this request.” In any case, he adds, the pre trial chamber found out that such a request lacked justification.

On the police interviews, Githu said there was a court order issued on February 1, 2011 prohibiting Judge Kalpana Rawal from “taking or recording any evidence from any Kenyan” pursuant to any international criminal court process.

“It cannot be right that a State’s internal security is suborned by an outside agency’s ill supported allegations of non-cooperation which has the potential to erode national regard for the institutions of Government and their compliance with the rule of law,” Githu said.

In her latest filing, Bensouda says the government of Kenya supported this court order and that the order has remained “despite the repeated requests to the GoK to ask the Court to designate judges to hear the case on the merits.”

Muigai said instead of always complaining, Bensouda would do better to report Kenya to the Assembly of State Parties in accordance with the provisions of the Rome Statute.

He nevertheless said the government of Kenya has fully complied with its obligation and gone an extra-mile of honoring handing over state documents and materials that other states would not even give a thought to.

“The provision of such sensitive national security materials to a third- party for use in criminal proceedings is, in the respectful submission of the Kenyan Government, an unprecedented act of cooperation with the Court and demonstrative of the Republic of Kenya’s commitment to and respect for the ICC,” he said.

Meanwhile, the International Criminal Court will need to spend some Sh5.5 million to set up a video-conferencing facility to allow President Uhuru Kenyatta to attend trial from Kenya.

A similar cost would be incurred if the court also allows Deputy President William Ruto and his co-accused Joshua Sang to attend their trial via video-link.

This includes the cost of buying the equipment needed in Nairobi and at The Hague for the trials to be held through a video-link as requested by Uhuru, Ruto and Sang.

The court’s registry told the Trial Chamber V judges that it would also take a minimum of two months to have the facility set up and tested. Uhuru’s trial is scheduled to kick off in July while that of Ruto and Sang is supposed to start next month.

The registry told the judges that there was likely to be delay in the court proceedings in case the video-link system is adopted unlike if the three suspects physically appeared in court.

“The registry maintains its view that a video-link set up should be an ad hoc solution rather than a structural one,” the registry said in its submissions. The registry also said that proper planning of the trial schedule would be needed in order to avoid possible interference of the cases.

The registry also said that the location identified in Kenya for the video-link must always be secured adding that the current ICC field office in Kenya cannot be used for this purpose.

The registry told the judges that while communication via the video-link would be encrypted, no guarantee could be given for general communication by the parties via mobile phones.

The registry has also recommended that the need for power back ups in case of interruption in electricity supply in Nairobi which would affect the video-link.

“The registry would do its best to maximise the audio quality, but noise pollution from outside and/ or other factors such as heavy rains would obviously be out of the registry’s control,” the submission made on Tuesday reads.

They also said that there would be need for two simultaneous video-links if the accused and prosecution witnesses are to make submissions at the same time.

“As such, additional video conference and distribution of equipment would need to be purchased and added to the current court infrastructure,” the registry said.