What you need to know:
- PCs and provincial police chiefs engage private lawyers in a move that could further delay ICC investigations into post-election violence.
Security chiefs on watch during Kenya's post-election violence have teamed up to stop the International Criminal Court (ICC) from taking their statements in a move that could further delay the long-awaited investigations.
The security bosses have retained lawyers and stated that they should not be coerced into giving statements to investigators because, according to the law, they should only do so in the presence of a High Court judge.
It is the latest obstacle for the ICC investigations on which a majority of Kenyans — according to several opinion polls conducted since 2008 — have placed their hopes for justice for victims of post-election violence.
ICC chief prosecutor Luis Moreno-Ocampo has said he seeks to narrow the focus on from two to six people from both sides of the political divide who are believed to have masterminded, directed or financed the violence.
Provincial security chiefs on watch during the violence that claimed more than 1,000 lives and left hundreds of thousands displaced have rejected a government directive to give evidence to ICC detectives on the basis of their interpretation of the law.
The new position taken by the officers led to at least two meetings between them, their lawyers, ICC detectives and government officials that ended in a stalemate, temporarily halting the investigations which Mr Moreno-Ocampo and his team intend to complete in the next two months.
Sources familiar with the investigations say the ICC detectives are trying to establish whether any government official issued shoot-to-kill orders during the violence. It’s for the same reason that they have requested access to government documents detailing official action taken during the violence.
“They want to establish whether there was any official who issued instructions, whether there was a Cabinet memo, whether the State had any official police, what actually happened and where the buck really stops,” said the source who cannot be named because he is not authorised to speak on behalf of the ICC.
Security chiefs of interest to the detectives include former Internal Security minister John Michuki, former Police Commissioner Maj-Gen (rtd) Hussein Ali and Administration Police Commandant Kinuthia Mbugua because of the offices they held at the time.
The detectives, our source said, would like to establish whether any of them or other State officials working with them had deliberately issued instructions that could be construed to be a crime under the Rome Statute.
The ICC detectives have calculated that by taking statements from provincial police chiefs and provincial commissioners who served at the time, they would be able to establish the chain of command, understand how and why police officers responded to the protests and riots with a heavy hand and see where the evidence they might find will lead them.
Upon ICC’s request for evidence, the Attorney-General granted authority which was followed by a directive from the Office of the President to the officers to appear before the ICC team at the CID Training School on Monday.
“They were directed to appear before the team but were not told the nature of the statements they were to make. The objective was to answer questions and make statements. One of the officers was hesitant to attend without a lawyer,” said an official familiar with the week’s proceedings.
The officer in question showed up with a lawyer, who argued that the ICC detectives could only take involuntary statements before a judge because Kenyan law requires it. The rest of the PPOs present followed suit and instructed private lawyers to act for them.
The lawyers were relying on a provision in Section 99 of the Rome Statute that states: “Requests for assistance shall be executed in accordance with the relevant procedure under the law of the requested State and, unless prohibited by such law, in the manner specified in the request.”
In this case, they turned to Section 78 of International Crimes Act which states: “If the Attorney-General gives authority for a request relating to the taking of evidence to proceed, the statement of each witness shall be taken in writing on the oath or affirmation of that witness by a Judge of the High Court.”
The ICC team, on the other hand, was relying on Article 99 (4) of the Rome Statute, which states in part: “Where it is necessary for the successful execution of a request which can be executed without any compulsory measures, including specifically the interview of or taking evidence from a person on a voluntary basis, including doing so without the presence of the authorities of the requested State Party if it is essential for the request to be executed, and the examination without modification of a public site or other public place, the Prosecutor may execute such request directly on the territory of a State.”
The Kenyan lawyers, who included Mr Ken Ogeto, Mr Gershom Otachi, Mr Evans Monari and Mr Ahmednasir Ibrahim, argued that the statements to be taken from the officers summoned to CID Training School were not necessarily voluntary and therefore required the presence of a judge.
“These people have not appeared voluntarily. They have been summoned, on your request to the government. They do not know what you want them to say,” one of the lawyers in the team told the ICC investigators.
Mr Ogeto and Mr Ibrahim confirmed having attended the meetings on Monday and Tuesday but said they would discuss nothing further to protect their clients’ confidentiality and due to the sensitive nature of the issues.
The stalemate drew ire from the Kenya Chapter of the International Commission of Jurists, who accused the government of changing positions and offered a different interpretation of the law.
“The government position that the ICC investigators could only interrogate its security chiefs in the presence of a judge is erroneous for the reason that the request by the ICC does not relate to the taking of evidence. Section 77 is only applicable in situations where the ICC opts for evidence to be adduced within Kenya and in an ideal situation where a case is pending determination before the pre-trial chamber or the trial chamber.
This is not the case in the current instance; the prosecutor is just conducting his investigations and is yet to present his case before the trial court,” said ICJ executive director George Kegoro.