In her submissions to the Hague-based court, Bensouda says that she has encountered difficulties in securing full and timely cooperation from Kenya, despite assurances by government.
She says that although the Government of Kenya (GoK) had allowed investigative missions from the Office of The Prosecutor (OTP) to Kenya, there were other areas in which the government had failed to cooperate.
“Contrary to the GoK’s claims to have acted in “full compliance” with its obligations under the Statute 24, the OTP continues to encounter considerable difficulties in securing full, effective and meaningful cooperation, which continues to deprive the chamber of evidence that may assist in adjudicating the Kenya cases,” she protested.
She says that the government has failed to execute requests for documentary evidence relating to among other things financial records of the accused in the two Kenyan cases.
“The requested information is not novel, nor does its retrieval place an undue burden on the GoK. The compilation of accused financial data is standard law enforcement practice and there is no reason why the GoK cannot undertake it here, in keeping with its Constitution and pursuant to its obligations under the Statute,” she protested.
She has further accused the government of failing to facilitate interviews with individuals who could have provided the prosecution with critical information on the role of the police in the post poll chaos.
The prosecution had particularly sought for interviews with five provincial commissioners and another five police officers. Former Chief Justice Evan Gicheru in 2010 appointed Justice Kalpana Rawal to take evidence from the officers but she was barred by a court order from taking the evidence.
“While the preliminary injunction was supposed to be temporary, more than two years later, it remains in force. The GoK has failed to represent the court’s interests in this instance; it has not appealed on the prosecution’s behalf to the Kenyan High Court to resolve the issue or to ensure that a bench is appointed to hear the lawsuit on its merits,” she submitted.
She says that despite the court injunction former Head of Civil Service Francis Muthaura and former Police Commissioner Mohammed Ali had in their defence submitted 39 written statements from police and other law enforcement officials thus creating an ‘uneven investigative playing field.’
Bensouda revealed the prosecution met with Head of Civil Service Francis Kimemia in February 2012 over the completion of the process of taking statements from the officers but that Kimemia insisted that it was a matter with the courts.
She says that Kimemia also demanded that the ICC reimburses the government for the costs of the preliminary hearings.
Bensouda has told the court that the government cannot claim to have provided the prosecution with the reports of the Commission of Inquiry into the Post Election Violence and that by the Kenya National Commission on Human Rights as the two were autonomous bodies.
When Bensouda dropped charges against Muthaura she said one of the reasons was that the government had failed to cooperate with the court.
In April however, Attorney General Githu Muigai accused the OTP of failing to make formal applications to the court about its allegations that the government of Kenya has refused to cooperate with it.
He referred to the country’s refusal to pull out of the Rome Statute as demanded by a group of politicians as an element of cooperation.
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