Tag Archives: 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.

Defence Responses to the Government Submissions on Cooperation

The Ruto Defence supported the Government position in arguing that Kenya has in fact been fulfilling its Rome Statute obligations. They argue that the Prosecutor simply failed to investigate adequately and was ‘duped’ by key witnesses. The Ruto Defence also took issue with the Prosecutor for claiming that the Kenya cases were the ‘most’ difficult she had prosecuted- they point to the Darfur cases under the Sudan situation as being more difficult, especially since cooperation with the ICC is an offence under Sudanese law.

The Defence also accuses the Prosecutor of using slander and insinuation about witness intimidation and interference without presenting evidence to back her accusations.

The Sang defence also support the GoK submissions on cooperation, arguing that the Prosecutor is conducting a public relations campaign while at the same time smearing the image of the Kenyan Government through her allegations of non-cooperation.

Prosecutor and Victims Respond to Government of Kenya’s Submissions on Cooperation

The Prosecutor replied to the Attorney General’s arguments (in which he refutes accusations of non-cooperation with the ICC) by repeating her assertion that she has not received full and timely cooperation from the Kenyan Government. She also referred to the ‘anti-ICC’ climate that government officials have fostered in Kenya- which has affected the perceptions of witnesses and partners. Specific issues that the Prosecutor points to include:

1. A ‘strategy of delay’ with respect to the documentary evidence that the GoK was asked to provide, some of which documents has been pending from 1-3 years.

2. The GoK revealing confidential information through its submissions.

3. Where the Government has provided the requested evidence, key parts of it have been missing (such as National Security Advisory Committee Meetings minutes taken during relevant periods of the Post-Election violence), only for the GoK to then give the Accused access to the missing evidence that was denied to the Prosecutor.

4.Unnecessary redactions to the information that it gave to the Prosecutor.

5. Monitoring and Surveilling Prosecution investigators during their visits to Kenya, despite protests from the Prosecutor.

6. Government officials attempting to influence Prosecution witnesses.

7. Failing to facilitate interviews with Provincial commissioners and police officers- instead hiding behind a court injunction barring evidence taking for the ICC process, though the GoK failed to challenge the original injunction or appeal against it. Ironically, according to the Prosecutor, this did not prevent the same officers giving statements on behalf of the accused after the injunction was in place.

8. The Prosecutor finally argues that the GoK already knows the specific allegations of non-cooperation because of the numerous letters and emails exchanged between the OTP and AG. Therefore the AG’s request to the court that he be ‘put on notice’ about such allegations is moot.

THE VICTIMS’ SUBMISSIONS

Legal Representative Fergal Gaynor also responded to the AG and refuted the GoK’s claims that it adequately assisted PEV survivors who were IDPs. He points to reports by the Kenyan Parliament, the UN Special Rapporteur on IDPs and international human rights bodies that say otherwise.

He also notes that the failure to arrest Omar Al Bashir during his visit to Kenya is evidence that Kenya is not fully committed to its Rome Statute obligations.

The Legal Representative also noted the failure of the GoK to investigate and prosecute persons bearing the greatest responsibility for PEV.

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

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