Monthly Archives: October 2012

Conclusion of Prosecutor’s Visit to Kenya

The Prosecutor’s press conference at the conclusion of her visit was as carefully worded as her opening one. But it belied some of the hot moments of her visit. These included an unexpected apology she graciously made on behalf of her predecessor for his failure to meet with IDPs and the rather puzzling decision of the CJ to decline her request for a closed-door meeting.

Her final statement to the media echoes the one she made at the start of her visit. Again and again she returns to the themes of witnesses and victims and working jointly with Kenyans against impunity. I’m not sure her final statement even mentions the word ‘accused’ once!

The Prosecutor also pressed home the 9 January deadline for the final hand-over of evidence. She wants the state to deliver the various items of evidence her office has requested by end of November. This is because the prosecution has to review the material thoroughly before providing it to the defence per the agreed deadlines.

Lets hope there’s no ploy within the government to try and dump evidence on the Prosecutor’s office on 8 January or worse, to simply allow the deadline to pass with no reply as happened in the wrangling over the referral of the situation.


While the statute requires that member states comply with requests from the court for cooperation, it also seems to impose derivative duty that where a state is unable to cooperate for whatever reason, it must give reasons for this. Furthermore, in relation to other forms of cooperation (Article 93), such as provision of official records and documents, if there is a fundamental legal principle ‘of general application’ that prohibits the state from cooperating, then it is obliged to consult the court ASAP to see how to resolve the situation.


Under Article 93, a state cannot deny a request for assistance unless the evidence or document disclosure relates national security.


Update on Bensouda visit

The visit to by the ICC Prosecutor, Fatou Bensouda, is winding down. So far here are the key highlights

  1. A plea for evidence– the prosecutor, in a her press statement mentioned the countless requests for cooperation sent to African countries and to which the relevant governments have successfully complied. So it speaks volumes that she had to come personally to speak to the Kenya government, much like her predecessor Ocampo. Clearly the relationship of cooperation between the court and the Kenya government is still touch-and-go. I’ll post later on the type of evidence the Office of the Prosecutor generally seeks and whether the cooperation structure under the Rome Statute is sufficient.
  2. A visit to some of the hotspotsthe Prosecutor was keen to highlight her visit to IDPs and Victims of violence. This is important to for victims seeking justice to put a human face to the Hague process. Equally, the prosecutor will have the human faces of the countless victims fixed in her mind when she (or a member of her office) goes to make the opening statement in April next year. But the visit is more than meeting with people. By visiting places like Kiambaa church, the prosecutor and her team will get a sense of scale, distance and context in connection to the cases. Its one thing to see a place on a map, but to actually see the roads, shopping centres, abandoned houses, re-construction, disputed lands and farms and to speak to those who actually live in the area will doubtless assist both Prosecution and Defence in preparation for the trial.
  3. Witness protection–   her office has been vocal about attempts to interfere with witnesses, so a briefing from the director of the Witness Protection Agency will be interesting. Although her predecessor mentioned that the ICC had already re-located and put in place protective measures for potential witnesses, the WPA is still important. Don’t forget that the two trials are only the accused that the Prosecutor is pursuing so far. What if fresh evidence implicating other or different suspects arises for the same situation? The prosecutor would have to go through further procedure to get new cases admitted to court; in the meantime, any potential witnesses might still need the WPA until the ICC’s VWU is able to act.

ICC Prosecutor touches down

Today the ICC Prosecutor, Fatou Bensouda, was in Nairobi. She’ll be here for the next week, meeting with a mixed bag of people and groups, from judicial officers to security personnel; from president to pauper; from IDPs to IDP-makers  Politicians.

Reading her statement to the media this afternoon, one can sense the caution with which the court treads in these cases. Constant themes include ‘respect’ and ‘listening’. But hidden beneath this soft tone of humility were some sharp rebukes The statement mentions efforts to interfere with witnesses and evidence. There’s a pointed reference here to delays in the government processing requests for information.

The implication for me is that for all the courtesy, this is not a meet and greet trip. Rather I see it as an effort to sustain pressure on the Kenya government whose attitude to the court can at best be summed up as neutral. There is genuine worry at the court about the level of cooperation to be expected from the state as the cases gather momentum. Of course the government is careful to say all the right things in public.

Another pointed reference: “The ICC judicial process will also take its own course irrespective of the political choices that the people of Kenya make.” In case you missed it, that was telling the accused to expect to be at the Hague in April, whether or not they are in the next government.
Her full statement to the media is available here.

Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law


Advancing the rule and role of law in Africa