Lawyers in ICC case face visa hitch

December 6, 2010 12:00 am

, NAIROBI, Kenya, Dec 6 – Lawyers representing security chiefs who are required to record statements before the International Criminal Court (ICC) now say they have been frustrated by the Dutch embassy which has denied them visas to travel to The Hague to represent their clients.

The lawyers from Ogetto, Otachi and Co Advocates and Daly and Figgis said they lodged their visa applications on Wednesday and were yet to be approved, even after stressing the significance of their travel.

"Despite the urgency that we explained to the embassy officials when we applied for the visas, they said they had to get approvals from the Dutch government and the ICC before visas can be issued to us," advocate Evans Monari said at a press conference in Nairobi on Monday.

He was accompanied by fellow lawyers Kennedy Ogeto, Gerishom Ottachi and Caroline Gichuhi.

Mr Monari and Mr Ogeto who were due to travel to The Hague last week said they have not been given satisfactory explanation by officials at the Dutch Embassy on why their visas have not been approved, six days after they lodged the application.

"It is important we stress here today (Monday) that it is extremely frustrating that individuals seeking justice before that [ICC] court should be subjected to unnecessary strictures in obtaining entry permits into the Netherlands," Mr Monari said.

He said they were surprised when the Embassy officials told them that it would seek the ICC\’s approval before granting the visas to them.

"It is not clear why the ICC should be the one giving clearance for those travelling to the Netherlands," he said and added: "If this is going to persist, it will be necessary in future that the ICC through its own organs considers that the matters relating to the Kenyan situation be transferred to a country that is friendlier and has easy access for those wishing to travel there."

The two lawyers said they had wanted to travel to The Hague last week to file an application seeking to suspend ICC investigators in Nairobi from questioning their clients.

The lawyers however, managed to file the application online on Thursday and are now awaiting the verdict of the pre-trial judges who will determine if five Provincial Commissioners (PC) and four Provincial Police Officers (PPO) will appear before Justice Kalpana Rawal to give evidence this Tuesday.

"As it is, the pre trial judges are considering our application. We are waiting for the verdict," Mr Monari said and declined to reveal their next course of action in case their application was rejected.

He also declined to reveal whether their clients would appear before Justice Rawal on Tuesday as scheduled.

Mr Ogeto later told Capital News that Benson Ndwiga, who is not named in the application filed in The Hague but has now enlisted them to represent him, appeared before the ICC-designated judge in Nairobi on Monday.  It was not clear if he gave any evidence before Justice Rawal.

Mr Ndwiga was serving as PPO in Central Province at the time of the post election violence.

In a quick rejoinder, the Dutch Embassy in Nairobi rejected claims it had denied any of the lawyers visas to travel to The Hague.

“As host country to the ICC, the Netherlands is prepared to do all it can to facilitate the travel and contacts with the ICC in The Hague. The Dutch embassy has not denied visa to lawyers wishing to visit the ICC,” Camilla Veerman, the Embassy’s First Secretary said in a statement.

The statement explained: “A regular visa application takes three working days to process, if all necessary information is provided. If there is a specific request from the ICC the request may be processed even quicker.”

Mr Ogeto and Mr Monari however insisted that there had been a deliberate delay when notified of the embassy’s stand.

“Ocampo and his team have unlimited access to Kenya.  There is no reason for other people seeking justice in The Hague should be denied access,” Mr Ogeto told Capital News on telephone.

“They should treat us with respect notwithstanding the fact that they [ICC] are investigating Kenya,” he said.

Mr Monari on his part questioned why the Dutch Embassy should rely on the ICC for it to expedite visa applications.

“The ICC is not part of the Dutch government, therefore the Dutch Embassy should not claim that they could have processed our visas quicker if they received an ICC request,” he said and added: “ICC is an independent court that is based there, it has nothing to do with the Dutch government,” he added.

The lawyers moved to the court to seek proper interpretation on the procedures to be followed in the evidence-taking process after the ICC designated judge insisted that their clients must give evidence, contrary to an earlier letter by the ICC the process will be voluntary.

The five PCs and four PPOs are further seeking an order from the court to suspend the presentation of any indictments of suspects before their application is heard and determined.

Their lawyers argued in the application that any planned indictment of Kenyan suspects will be unlawful because the ICC has not managed to take statements from the Kenyan security officials which would form the basis of crimes against humanity, which is the backbone of Mr Ocampo\’s investigations.

The applicants include Coast Provincial Commissioner Ernest Munyi, Japhter Rugut of Central province, Paul Olando of Western province and former 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.

The officers were scheduled to give evidence to ICC investigators on Wednesday last week but their lawyers objected, prompting Justice Rawal who is designated to help the ICC in the process to reschedule the exercise to Tuesday.

In what is seen as an attempt to scuttle the ICC process, the security officials now wants the pre-trial chambers to halt the process of taking evidence from them, on grounds that it violates their fundamental rights as witnesses.

They are also seeking the judge\’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 giving evidence, he or she would be stood down.

Mr Ocampo told the National Dialogue and Reconciliation Conference in Nairobi on Thursday that six individuals he wants to indict will be known by December 17.

Some 1,300 people were killed and more than 500,000 others displaced after the disputed presidential elections of 2007.


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