Kabuga and Kenya’s Disinterest in Fighting Impunity

The ICC Prosecutor regularly accused the Kenya Government of failing to cooperate with her office in the run-up to the Kenya trial. Such failures included refusing to allow interviews with senior security officers (the Attorney-General claims a court order tied his hands) and refusing access to documents relating PEV.

Taking a trip down memory lane via the Wikileaks cables, it’s clear there is a disturbing pattern to Kenya’s non-cooperation with international criminal processes. When the International Criminal Tribunal for Rwanda (ICTR) tried to get help with locating wanted suspect Felicien Kabuga, this, according to the US embassy in Kenya, is the response they got from the GoK:

[ICTR Chief Prosecutor Bubacar Jallow] noted that early in their  investigation Kenyan intelligence officials had shown ICTR  investigators a large file on Kabuga, but had never allowed  them to examine its contents.  He also noted that the  ICTR investigators had been unable to gain Kenyan government  cooperation in interviewing certain Kenyan citizens,  including former government officials, regarding their ties  to Kabuga.  Furthermore, he described the ICTR’s unsuccessful efforts to petition the Kenyan government to  freeze bank accounts and other assets identified as being  owned or controlled by Kabuga.  For his part [Foreign Minister] Tuju admitted  that some officials in the government may have ties to  Kabuga.  He also accepted that corruption within the  government and law enforcement agencies could be impeding the  investigation.  Jallow responded by pointing out that time is  short because the ICTR’s mandate expires at the end of  2008.

This is the accusation that the Prosecutor made about Kenya’s refusal to cooperate:

…The GoK has failed to execute the OTP’s most important requests for documentary evidence. On 24 April 2012, the OTP requested from the GoK, among other things, financial and [REDACTED] records regarding the Accused in both Kenya cases (“RFA 45”)…

 …The GoK has failed to facilitate the Prosecution’s access to individuals who may have provided the Prosecution with critical information regarding the police role in the PEV. On 27 August 2010, the OTP requested the GoK to facilitate Prosecution interviews of five Provincial Commissioners and five Police Officers. Since then, the OTP has exchanged over ten letters and deployed its staff on five separate missions to Kenya to follow up on this request. The interviews were never conducted.

Though the Chamber has yet to rule on the Prosecutor’s allegations, it is in this context that none other than the current Foreign Minister (Cabinet Secretary for Foreign Affairs) Amina Mohamed went on the BBC’s Hardtalk programme to state her full confidence that both accused- Kenyatta and Ruto- are not guilty owing to a lack of evidence in the cases. Perhaps the evidence has been as lacking as Kenya’s cooperation…

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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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