NAIROBI, Kenya, Apr 14 – International Criminal Court Prosecutor Luis Moreno Ocampo is now asking judges at The Hague not to compel him to disclose evidence to six Kenyans facing indictment there.
Mr Ocampo has applied for leave to appeal against the decision issued last week directing him to proceed with disclosure of evidence to Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura and former police chief Hussein Ali. Others are Tinderet MP Henry Kosgey, William Ruto of Eldoret North and radio presenter Joshua arap Sang.
In his application Mr Ocampo is asking the court to reconsider the decision by presiding judge Ekaterina Trendafilova who directed him to give his evidence to the defendants. He argues such move would expose the identities of his witnesses.
He also says before he is asked to disclose the evidence, the court should first dispose of an application by the Government of Kenya that is challenging the admissibility of the case before ICC.
“The security of the witnesses should not be affected without a final determination of the issues of admissibility. There is a significant risk in disclosing information that would identify witnesses before admissibility is finalised,” the prosecutor says in his plea.
He has requested the three judges of the court to hear the application. (Read the full application here)
The prosecutor has quoted newspapers reports on the homecoming of Mr Kenyatta and Mr Ruto saying the message they passed during the prayers maybe construed as threats to witnesses.
“The concerns about the witnesses are based on the public attention that this case has attracted in Kenya and events that signal that supporters of the suspects might attempt to retaliate against perceived witnesses,” Mr Ocampo adds.
He says the conclusion is based on the previous security risk assessments conducted, although the risks were exacerbated after the first appearance.
“As soon the suspects returned to Kenya they were given heroes’ welcome by some of their supporters. Additionally, supporters are campaigning to present the ICC activities as an affront against the Kalenjin and Kikuyu communities to which the suspects belong,” Mr Ocampo claims.
“Some of the witnesses against the suspects will be viewed by their ethnic communities as traitors, and their cooperation with the Court as total betrayal. Even if the witnesses and their families are protected, their lives will be affected. Some may not be able to return to Kenya at least for a period of time.”
Mr Ocampo says the prosecution cannot disclose information unless it takes further steps to protect the witnesses and their families, which he said was costly and highly disruptive to all concerned and should not be undertaken unless there is certainty that the confirmation proceedings will occur.
“In short, disclosure should be ordered after the issue of admissibility is decided. This course of action, would respect the right of a sovereign State to a fair consideration of its claims. It would respect the needs of the victims, whose identities should not be compromised in a case that could later be found to be inadmissible. It would respect the right of the Prosecution to complete its pre-confirmation investigations,” he says.
“The Prosecution also notes that the suspects are not in custody, and the delay that would occur from the requested suspension is not attributable to any action on the part of the Prosecution or the suspects themselves.”
The Ocampo Six suspects had appeared before the court on April 7 and 8.
The presiding judge of the Pre-Trial Chamber then set April 18 as the day when a status conference would be held where the prosecutor is required to disclose his evidence against them.
The court had also set September 1 when the hearing of confirmation of the charges will begin.