Tag Archives: Attorney General

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…

Recent Court Documents in the 2 ICC Kenya Cases 25 June 2013

The defence for Uhuru Kenyatta applied to the Trial Chamber to compel the Prosecutor to lift redactions on the evidence that she had disclosed. This included redactions to witness transcripts, the pre-trial brief, the list of evidence and the list of witnesses. The defence also asked the court not to set a trial date until the Prosecutor complied.

The Government of Kenya weighed in further with respect to its cooperation obligations: the A-G accused the Prosecutor of ‘paranoia’ when she claimed that her staff had been obstructed in their work in Kenya. With regard to the court injunction preventing the OTP from interviewing Kenyan security officials, the A-G noted that ‘the matter had been scheduled to be heard in court on 24 May 2013 but the matter did not proceed as scheduled’. Furthermore, the A-G argued that the reason some of the evidence handed to the OTP was incomplete was due to ‘filing problems’ caused by missing files in the Judiciary. It’s tough to read some of these stated reasons with a straight face, because ‘the matter could not proceed’ and ‘the file is missing’ are outworn slogans used day in, day out in Kenyan courts to excuse paralysis. Such phrases would have been music to the ears of the Adjournment Lawyer in R K Narayan’s classic, The Man-Eater of Malgudi. This fictional attorney was sought after:

‘… for his ability to prolong a case beyond the wildest dream of a litigant.’

Let’s see what the Trial Chamber makes of these reasons.

Update on the 2 ICC Kenya Cases 20 April 2013

The Government of Kenya, upset at being called uncooperative and being accused of helping the Muthaura case to collapse, applied to the court to make formal observations about its efforts to assist the court throughout these proceedings. The Government, through the Attorney General, felt that they were not given a fair opportunity to respond to the complaints from that the Prosecutor made about access to evidence when she dropped charges against Muthaura. The AG, in his application, listed a number of instances of actions the GoK took to facilitate the work of the court. He argues that Kenya has complied fully with its treaty obligations- specifically its cooperation obligations- and points out the Prosecutor has not referred any matter of non-cooperation to the Assembly of State parties, thus showing that her allegations carry no weight.

The Prosecutor has asked the court to deny the Kenyatta defence application for a stay or termination of the proceedings. They argue that the case against Kenyatta, subsequent to OTP-4’s withdrawal has not changed sufficiently to warrant any such remedy.

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

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