NAIROBI, Kenya, Dec 3 – A spirited effort to block the International Criminal Court (ICC) from indicting anyone in Kenya or taking evidence from security chiefs is in the offing, after a case was filed at The Hague late on Thursday.
The case was lodged by nine senior security chiefs who want to stop ICC Prosecutor Luis Moreno Ocampo from questioning them, unless the court gives an assurance that they will never be prosecuted over the post-election violence.
Through Ogeto and Ottachi Advocates, the five Provincial Commissioners and four Provincial Police Officers are further seeking orders to suspend any indictment of suspects before their application is heard and determined.
Capital News authoritatively established that the application was filed in the Netherlands by lawyers working under instructions from Kenyan advocates acting for the nine security officials in Nairobi.
They argue that Mr Ocampo cannot indict anyone in Kenya, unless the statements from the security chiefs are taken. The statements would provide grounds to justify crimes against humanity, which the ICC must prove in the Kenya case.
The nine security chiefs were due to have started giving statements before Justice Kalpana Rawal but the process has been dogged by delays following objections raised by the lawyers. A new date had been set for December 7.
The security officials now want the ICC Pre-trial Chamber to halt the process of taking evidence from them, on grounds that it violates their fundamental rights as witnesses since they had been ‘forced’ to give testimony which should not be the case for witnesses.
They are also seeking the court’s formal assurance that none of them will be arrested and prosecuted now or in the future over the 2007/08 post election violence.
Justice Rawal had told journalists that in the event any of the witnesses turned out to be a suspect in the course of taking their evidence, he or she would be stood down.
The applicants include Coast Provincial Commissioner Ernest Munyi, Japhter Rugut of Central province, Paul Olando of Western province and former Rift Valley PC Hassan Noor Hassan.
The police chiefs include King\’ori Mwangi, Njue Njagi, Joseph Ashimala and Grace Kaindi who served as PPOs in volatile areas of Coast, Nairobi, Rift Valley and Nyanza provinces respectively during the poll period.
None of the officers were immediately available for comment but one of their lawyer Kennedy Ogeto confirmed the application had been filed but declined to discuss further details.
"It is true there is an application of that nature which we have filed but I cannot discuss the details at the moment," Mr Ogeto said.
He said the legal counsels for the witnesses would serve Justice Rawal in Nairobi with the application on Monday.
It was not clear if Mr Ocampo who is in Nairobi had been notified of the application which threatens to stop his intention to indict masterminds of the post election violence.
On Thursday, Mr Ocampo told the National Dialogue and Reconciliation Conference in Nairobi that six individuals he wants to indict would be known by December 17.
Reports of the application filed at the ICC court in The Hague are likely to spur fresh controversy and mixed reactions, mainly from members of the civil society who have been pushing for the arrest and prosecution of those who funded or organised the chaos.
Some 1,300 people were killed and more than 500,000 others displaced after the disputed Presidential Elections of 2007.
Mr Ocampo has revealed he intends to indict six key suspects he says planned or financed the violence.
On Friday, he said that he was aware of an attempt to intimidate and threaten witnesses and said he would seek orders from the ICC to arrest the perpetrators.
Amid the new development, Attorney General Amos Wako appeared to poke holes in the evidence gathered by Mr Ocampo, saying it might not be enough to adequately incriminate masterminds of the post poll chaos.
A group of MPs from the Rift Valley and Central Province also called a news conference in Nairobi where they accused Mr Ocampo and Prime Minister Raila Odinga of hatching a 2012 power game plot.
The seventeen MPs alleged that the ICC process was a hatched plot to eliminate Mr Kenyatta and Mr Ruto and create room for their opponents in the race towards the 2012 General Elections.