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.

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.