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.