I won’t honour Kenya court call – Bensouda
Bensouda wrote to Kenyan ambassador to Netherlands, Rose Muchiri, saying that she is immune from summons by the Kenyan High Court.
“The High Court of Kenya has no Jurisdiction over my office or the ICC as a whole, and my office will not participate in these proceedings,” Bensouda said in the letter dated July 9 and copied to Interior CS Joseph Nkaissery.
The Judiciary had tasked the Ministry of Foreign Affairs to serve Bensouda with lawsuit papers in a case on the Waki Report.
This follows a successful petition lodged by Ugandan activist David Matsanga, who is seeking full disclosure of the secret Waki List on the post-election violence.
The documents sent to Bensouda include a duplicate of the petition together with a mention notice of July 10.
Bensouda asked the recipients of the papers to communicate her stand to the High Court noting that the High Court has previously ruled that ICC and its organs have immunity.
“Immunity from legal process is similarly accorded to the Court’s officials and staff under Article 48 of the Rome Statute and Article 9A of the Kenya Privileges and Immunities Act,” Bensouda said.
Article 48(1) of the Rome Statutes provides that: “The Court shall enjoy in the territory of each State Party such privileges and immunities as are necessary for the fulfilment of its purposes.”
In the November 23, 2010 decision Bensouda was referring to, Justice J B Ojwang found the challenge by Joseph Kimani to the operations of the ICC to have no legal foundation.
The judge noted that Kenya had gone further and, under the Privileges and Immunities Act published Legal Notice No. 170 of September 29, 2010, specifically named the ICC as a body enjoying privileges and immunities.
“The said Legal Notice bears the title, the Privileges and Immunities (The International Criminal Court) Order, 2010, and states that the ICC “shall have the immunities and privileges set out in Part I of the Fourth Schedule of the Act” – and the immunities in that category are immunities from suit and legal process,” the judge said.
In the suit papers, Bensouda is listed as the second respondent in the case, where Matsanga wants the entire list of those who were on the Waki List disclosed.
The first respondent is Justice Philip Waki, who chaired the Commission of Inquiry into the Post-Election Violence, which came up with the list.
The third respondent is Attorney General Githu Muigai.
In the suit filed at the High Court in Nairobi on March 10, Matsanga and John Muiruri Kimani are seeking the disclosure of the full list that Waki handed over to former UN chief Kofi Annan.
It is believed that this was the list that the then ICC Chief Prosecutor Luis Moreno Ocamp, Bensouda’s predecessor used to derive the names of six Kenyans who were to be charged with crimes against humanity.
Of the six, only the cases against two – Deputy President William Ruto and journalist Joshua Sang – have reached the trial stage.
The Pre-Trial Chamber judges let former police boss Hussein Ali and former Minister Henry Kosgey off the hook by declining to send them to trial.
And before their trial could commence, President Uhuru Kenyatta and former head of civil service Francis Muthaura were also let off the hook.
Matsanga and Ngaruiya argue that if the names are made public, it will give relevant institutions a chance to implement recommendations regarding individuals’ alleged role in the violence.
Matsanga also says that he needs the information in order to “successfully proceed and prosecute my application at the ICC.”