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…
Following the instructions of the court, William Ruto deposited a document waiving his right to be present at his trial at the Hague.
The trial chamber also ruled on the Government of Kenya’s submissions on cooperation. The judges did not go into the merits of the matter, noting that there was no application by the Prosecutor accusing the Government of non-cooperation. They did however ask all parties to submit requests of notification of any applications relevant to the Government (such as a possible application for Non-Cooperation and Referral to State Parties). They dismissed the Prosecutor’s request that the GoK be cautioned for revealing confidential information in its filings because the GoK had already recognised the mistake and apologised.
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.
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.