, THE HAGUE, Netherlands, Nov 23 – The level of cooperation by the Kenyan government to the International Criminal Court was the subject of discussion at the sidelines of the Assembly of States Parties, at a forum on complimentarity organized jointly with the Germany government on Saturday.
Kenya’s Attorney General Githu Muigai who was invited to address the forum told participants the country had fully cooperated with the ICC, and wondered why its prosecutor kept accusing the east African nation of not giving her the support she requires.
“Of all the situations currently before the court, I want to challenge anyone to tell the world of a country that has cooperated with the court more than Kenya,” Muigai charged at the forum. “These are facts which speak for themselves; it is not an academic argument.”
“We even have ICC officials who came to investigate the cases and they are still living in Kenya. Their children go to schools in Kenya and their spouses are working there,” he told the participants at the forum that brought together international justice experts and civil society organizations. “They could not be living in the country If Kenya was not cooperating.”
The AG recalled instances where ICC Prosecutor Fatou Bensouda had repeatedly filed complaints in court, accusing Kenya of not offering her the cooperation she required to firm up her cases against President Uhuru Kenyatta, his deputy William Ruto and a radio journalist Joshua arap Sang.
“These accusations were ridiculous because we had been told by the same prosecutor that she had gathered sufficient evidence ready for the cases, yet on several occasions she turned around to say she is not prepared because the evidence she requires is in Kenya,” Muigai said, terming Bensouda’s accusations as “the most ridiculous I have heard in the few years I have practiced law because how do you take case to court when you have not gathered sufficient evidence?”
Even as international justice experts present accused Kenya of not sufficiently cooperating with the court, Githu reminded them that Kenya was not a failed state, citing the case of Walter Baraza—a former journalist wanted by the ICC for accusations of witness bribery.
In this particular case, he said, we have been accused of not enforcing a warrant [of arrest] issued by the ICC, yet it is a matter that is yet to be determined by our High Court as outlined in law.
“Complimentarity must be guided by mutual respect and recognition of our local laws in our country; we cannot defy our Judiciary at the expense of complimentarity. That is not the law,” he stressed.
Alex Whiting, a professor of law at Harvard University who also works at the ICC submitted that even though complimentarity is complex, Kenya needs to enhance its cooperation with the international criminal court.
“The work of the court will lack credibility without complimentarity from situation countries, as such, Kenya must fully cooperate with the court to supplement its work,” he said.
Kenya, he said, is not doing well in terms of complimentarity “because for instance we have not seen enough cases prosecuted locally for middle level perpetrators of the post election violence.”
He hopes that much more will be done in accelerating the establishment of the International Crimes Division of the High Court [ICD] under a new project funded by the Germany government. “But for this to succeed, there must be political goodwill.”
Samuel Kobia, who heads Kenya’s Judicial Services Commission, five-member committee responsible for outlining the ICD’s responsibilities told the forum, that the division will not be ready any time soon because there’s much more needed to be done in terms of logistics.
“We are not there yet, there’s no ICD yet, but we hope it will start taking shape from January next year when we will start putting up structures in place,” he said.
Dr Pascal Hector, Director International Law at the Federal Foreign Office in Germany urged the Kenyan government to accelerate efforts to set up the ICD, particularly now that it is receiving support from his country.
“This division is crucial because it will help deal with middle level perpetrators and other international crimes, we need greater capacity building to achieve this,” he said.
Human rights lawyer Njonjo Mue who also spoke at the forum said the government was not serious in setting up the ICD, even though members of the National Assembly had relied on it when passing motions to repeal laws domesticating the Rome Statute.
“We were told that Kenya is moving out of the Rome Statute because it is setting up local mechanisms to try the crimes of the post election violence, yet we have not seen the court established, it is very far away from being set up,” he said.
The AG however, reminded him that there existed a separation of powers between the executive and the legislature.