NAIROBI, Kenya, Apr 10 – The government is demanding that the International Criminal Court (ICC) prosecution explain how Kenya has failed to cooperate with the court.
In a submission to Trial Chamber V, Attorney General Githu Muigai has accused the Office of The Prosecutor (OTP) of failing to make formal applications to the court about its allegations that the government of Kenya has refused to cooperate with the court.
“Regrettably, the OTP has not acted in a reciprocal manner with the Kenyan government and continues to impinge upon natural rights of the sovereign Kenyan State,” he protested.
Muigai told the Trial Chamber that since the allegations made by the prosecution have serious implication on Kenya, there should be a consideration of making complaints of no-cooperation on notice to give Kenya a chance to respond.
“It cannot be right that a State’s internal security is suborned by an outside agency’s ill-supported allegations of non-cooperation which has the potential to erode national regard for the institutions of government and their compliance with the rule of law,” Muigai explained.
He said that the government on March 15, 2013 through its New York and Hague-based embassies issued a statement asking the Trial Chamber to ask the prosecution to make a formal application, ask the government to respond to allegations of non-cooperation, or ask the prosecution to stop making such allegations outside the court process.
The Attorney General worried that the prosecution has been frequently accusing Kenya of non cooperation yet it has failed to make it formal and give Kenya a chance to respond.
When ICC Prosecutor Fatou Bensouda dropped charges against former of Head of Civil Service Francis Muthaura, she said one of the reasons was that the government had failed to cooperate with the court.
She asserted that Kenya did not submit information, which led the prosecution to among other reasons drop charges against him.
According to Muigai, the frequent informal allegations are harming the existing cooperation relationship between Kenya and the prosecution.
He further expressed discontent especially with the conduct of former Prosecutor Luis Moreno-Ocampo who allegedly released information about Kenya through the media instead of following the correct procedures of first informing the government.
“The former prosecutor and current prosecutor have both made statements to the media alleging and insinuating purposeful delay, ulterior motives, inaction and non-cooperation by the Kenyan government,” he decried.
According to him, during Ocampo’s time, Kenya made a submission to the court in which it complained that; “the government found it strange and un-procedural that it would get communication first through the media.”
The Attorney General viewed dialogue and communication between the court and the State parties as one of the procedural issues that should be observed to promote cooperation as stipulated in the Rome Statute.
He insisted that Kenya has always cooperated with the court since the ICC started investigations in the Kenya situation. One of areas he identified as support to the court was allowing ICC staff to access the country and carry its investigations.
He further referred to the country’s refusal to pull out of the Rome Statute as demanded by a group of politicians.
Formation of the multi-agency task force on post-election violence under the Office of the Director of Public Prosecutions was also another area that Muigai identified as part of cooperation with the court.
Establishment of a witness protection agency and international crimes division within the High Court were other areas that Muigai said were signs that Kenya was cooperating with the court.
The Attorney General however regretted that some of the requests made by the prosecution were undeliverable especially submission of financial information of Joshua arap Sang, President Uhuru Kenyatta and his deputy William Ruto.
He said when the request was also made for former Police Commissioner Hussein Ali and Muthaura the Pre-Trial Chamber denied since it lacked justification.
Besides, charges against the two have already been dropped.