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ICC dismisses case by Kenyan security chiefs

NAIROBI, Kenya, Feb 2 – Judges at the International Criminal Court have dismissed an application filed by nine Provincial and Police chiefs seeking immunity from prosecution if they testify over their roles during the 2008 post election violence.

In a decision issued on Monday and sent to lawyers representing the security chiefs, the pre-trial Chamber judges ruled that they cannot undertake the role of the Prosecutor in determining who should be indicted.

"Such a far-reaching "assurance" as requested by the applicants would entail that the chamber would sit on behalf of the Prosecutor taking decisions that fall within his pure mandate," Presiding Judge Ekaterina Trendafilova and two other Judges Hans-Peter Kaul and Cuno Tarfusser said in the ruling dated January 31.

"Such power is not in the hands of the Chamber. It is the Prosecutor who may determine that there is no reasonable basis to proceed under Article 53 of the Statute, thereby deciding not to prosecute a particular person," they added.

The security chiefs had wanted the chamber to provide them with "assurances that they would not be prosecuted now or in the future for information they may voluntarily provide during the interviews that Luis Moreno Ocampo has requested."

The application was filed by lawyers from Otachi, Ogetto and Company Advocates and Daly and Figis which represent five Provincial Commissioners and four police chiefs who all served in areas worst hit by the 2008 post-election violence.

They include Provincial Commissioners Ernest Munyi (Coast), Japhter Rugut (Central), James Waweru (Nairobi), Hassan Noor Hassan (Rift Valley) and Paul Olando (Nyanza).

The police chiefs include King\’ori Mwangi (Coast), Njue Njagi (Nairobi), Joseph Ashimala (Rift Valley and Grace Kaindi who served in Nyanza Province.  Some of the officials are still holding their positions while others have been transferred or retired.

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The security chiefs had also wanted the Chamber to declare that they cannot be compelled to give evidence because the process is voluntary.

In response, the judges observed that "according to the Statute, the Court may request a State Party to facilitate the voluntary appearance of a witness before the Court, but not to compel a witness to testify before the national authorities of that State."

The judges said it was pointless for them to make a ruling on the orders sought by the security chiefs because they had been duly informed about their rights under article 55 of the Rome Statute, in particular their right not to be compelled to incriminate themselves.

The judges further observed that they had no jurisdiction to give orders to Justice Kalpana Rawal who was appointed by the government to help ICC detectives get statements from the security chiefs.

"The chamber wishes to highlight that the ICC was not designed to replace domestic justice systems in the performance of their judicial functions. Nor was it created to act as an oversight mechanism with respect to decisions taken by domestic judges," they said. "The only powers provided to the court vis-à-vis domestic courts in terms of ensuring compliance with its legal framework are those instances mentioned in the institution\’s statutory documents."

Therefore, they said, "the court is not in a position to dictate on the national authorities the manner in which they should perform their cooperation with the court.

"In light of the foregoing, the Chamber finds the second request without merit."

In their application, the PPO\’s and PC\’s were also seeking an order for the immediate suspension of the process of taking statements from them.

"The applicants seek to halt the investigative actions of the Prosecutor with a view of taking testimony. In this regard, it must be noted that the court\’s statutory documents do not empower the Chamber to block the Prosecutor\’s investigative activities, unless there is a compelling need to intervene in instances such as those contemplated in article 57(3)(c) of the Statute," the judges ruled and declared that the security chiefs\’ request had lacked merit.

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Mr Ken Ogeto, one of the lawyers representing the security chiefs and provincial bosses said he was delighted with the ruling.

"As much as the application has been dismissed, we are delighted because it has set a good precedent of recognising our local courts," he said.

The PPO\’s and PC\’s had also requested the chamber to declare that the determination on the issues of compellability and rights of persons during investigations by the pre-trial Chamber supersedes the decisions of the municipal court.

In their ruling, the pre-trial chamber judges said they understood this plea to mean it "makes a determination vis-à-vis a decision of the "municipal courts" in the Republic of Kenya".

They ruled that any investigation and cooperation must be carried out in accordance with the relevant procedure under Kenyan national law.

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