NAIROBI, Kenya, July 11 – International Criminal Court (ICC) Prosecutor Fatou Bensouda says she will not take part in the suit that activist David Matsanga and John Kimani have filed at the High Court demanding for the contents of the controversial Waki envelope to be made public.
Bensouda says her office enjoys immunity as per Kenyan law and the Rome Statute which governs the proceedings of the International Criminal Court.
In a letter to Kenya’s Ambassador to the Netherlands Rose Muchiri and copied to Interior Cabinet Secretary Joseph Nkaissery, Bensouda has requested that the same be communicated to the court handling Matsanga’s petition.
“In the said petition, Mr David Nyekorach-Matsanga, the petitioner, seeks an injunction to direct or compel the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC” or “Court”) to take certain measures and requests a hearing on July 10 before the High Court for the matter to be heard,” she wrote to Muchiri and Nkaissery a day prior.
Matsanga and Kimani have sued Bensouda’s OTP, the now defunct Commission of Inquiry into the Post Election Violence of 2008 (CIPEV) and Justice Philip Waki who chaired the Commission for the contents of the envelope.
They argue that the continued withholding of the Waki commission’s finding on the alleged masterminds of the 2008 Post Election Violence has led to heightened tension in light of Deputy President William Ruto and Journalist Joshua Sang’s case before the ICC.
“Non-disclosure of the names contained in the aforementioned report may lead to unnecessary blame and accusations being traded between supporters of the various persons suspected to be in the list which may end up in violent attacks,” their petition reads.
The Kalenjin Council of Elders, the Myot Welfare Association, has also sought to be enjoined in the case saying the Commission never sought its views before putting the contents of the envelope together.
Justice Waki, like Bensouda, has sought to be excluded from the proceedings.
He argues that the Commission and he by extension in his role as chair, cannot be sued as CIPEV is no longer an entity in existence.
“The report by the commission was submitted on October 15, 2008 before the promulgation of the new Constitution 2010 which cannot apply retrospectively,” Waki submitted through lawyer George Oraro.
He also argues that once CIPEV handed over the Waki Envelope to President Mwai Kibaki, it ceased to be in their possession and it is therefore not their place to divulge the contents.
He has also called into question Matsanga’s interest in the whole affair given he is not a Kenyan citizen or party to Ruto and Sang’s case.