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.

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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

AfricLaw

Advancing the rule and role of law in Africa

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