The Hague chief prosecutor Fatou Bensouda may be forced to seek assistance from foreign countries to compel Kenya to give the court access to government officers and security agents.
This would affect those who were in charge of post-election violence hotspots.
Ms Bensouda gave the strongest signal yet on Wednesday night as she submitted her evidence and list of witnesses to the International Criminal Court Judges that she has gathered against four Kenyans who are facing charges of crimes against humanity.
She however concealed the names of witnesses and crucial evidence for the safety of those intended to testify against Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, former Head of Civil Service Francis Muthaura and radio journalist Joshua arap Sang.
Failure to cooperate
“In her submissions, she accused the government of failing to cooperate with the ICC by not giving access to Provincial Commissioners and Police Chiefs who were in charge of areas which were hit most by the post-election chaos.
Consequently, she indicated to the Trial Judges that she may amend her list of witnesses and evidence against the four suspects in future if the Kenya government agrees to give her access to the officers.
“The prosecution hereby gives notice to the Chamber that in future, it may seek leave to amend the list of witnesses and or the list of evidence pursuant to the requirements of Regulation 35(2) of the Regulations of the Court if it obtains certain materials that it seeks to tender into evidence or succeeds in securing cooperation of certain witnesses that it has identified that it wishes to interview,” says the Prosecutor.
“These materials and or persons are the subject of certain governmental and or institutional restrictions for which the Prosecution has requested cooperation from a number of states pursuant to their co-operation obligations under Part 9 of the Statute, but which have not yet been received,” she goes on.
Sources said the government has blocked the ICC from accessing wealth declarations of the suspects, freezing their accounts and reports of the National Security Intelligence Service at the time of the post election violence.
Attorney General Prof Githu Muigai is said to have required the ICC team to make formal applications to access the said records with a requirement that it will take aCabinet approval for The Hague investigation to access NSIS reports.
Ms Bensouda was also said to have requested to interview Mt Elgon MP Fred Kapondi who chairs the Parliamentary Committee on Security but Prof Muigai reportedly told the ICC Prosecutor that the MP had the last decision on whether he wanted to be interviewed or not.
Faced with such challenges in a case that she is determined to prove that Mr Kenyatta, Mr Ruto, Mr Muthaura and Mr Sang bore the greatest responsibility, the ICC prosecutor appears to be ready to seek the assistance of foreign countries and agencies to gain access to the witnesses and evidence.
Sources from the legal teams of the suspects said Ms Bensouda could approach the US, Britain, the US Agency for International Development, the Danish Development Agency and locally, the Kenya Red Cross who were greatly involved during the post election violence.
“The Prosecution may also address the Chamber, when and if necessary, pursuant to Articles 93(1)(l) and 64(6)(b) of the Rome Statute, to obtain a request to one or more States Parties to provide assistance with respect to facilitating access to the above mentioned persons and materials or requiring witnesses’ attendance before the Court,” said Ms Bensouda.
However, she hastily stated that talks to gain access to the individuals and the evidence with the government of Kenya are at an advanced stage.
“The Prosecution has already approached several State parties, including the government of Kenya, in order to gain access to such individuals and materials. Discussions regarding the terms and conditions of such access are still ongoing,” she went on.
Media houses
Apart from the PC and the PPOs Ms Bensouda will also seek the permission of media houses to use the video recordings in their libraries to prove that the violence was organised by a distinct group targeting civilians.
She also wants to be allowed to gain access to medical records of some of the victims in public hospitals in areas which were hit most by the violence.
Ms Bensouda said in the case involving Mr Ruto and Mr Sang, the prosecutionestimates that it will require approximately 826 hours of court time to question 43 witnesses and three experts and expects that the defence will also require the same time.
For the second case, involving Mr Ruto and Mr Muthaura, she expects to spend 572 hours questioning 31 witnesses and three experts.
“The hours estimated do not however include time that the Chamber may grant to the Office of Public Counsel for Victims or the common legal representative to question prosecution witnesses, or time that the Chamber may use to question witnesses,” she said. – Source:Daily Nation
