The government’s attempt to convince the International Criminal Court that it is serious about investigating and punishing election violence suspects failed on Monday.
Efforts to have the cases pending at the ICC brought back home were thrown out, with the judges finding the government’s grounds for claiming to be serious about punishing crimes against humanity unconvincing.
Judges appeared puzzled by the government’s claims to be investigating the cases without providing any proof.
In one case, the government gave the court a letter from the Attorney-General ordering the Commissioner of Police to investigate persons to have masterminded the violence.
However, the letter was written after the government filed the case to have the Ocampo Six tried at home.
Judges, in their ruling, also noted that Kenya is short on measures already taken to punish impunity and long on promises of future action.
The ruling by Pre-Trial Chamber judges now leaves the government with one option— a higher bench chaired by ICC President Judge Song Sang-Hyun to decide the fate.
In the ruling sent to defence teams, Judges Ekaterina Trendafilova, Cuno Tarfusser and Hans-Peter Kaul declared:
“The Chamber hereby rejects government request, determines the case is admissible and orders the (ICC) to notify this decision to the Government of the Republic of Kenya.”
The government, through British lawyers Geoffrey Nice and Rodney Dixon, filed an application challenging the admissibility of the case at The Hague on grounds that it had commenced investigations into the Ocampo Six. (READ: ICC Judges receive Kenya's request to strike out cases)
To back their arguments, the two lawyers attached at least 24 annexes which included letters from Attorney General Amos Wako and Police Commissioner Matthew Iteere to the Criminal Investigations Department (CID) boss Ndegwa Muhoro to start investigations.
Of those 24 attachments, the court found only three were relevant to the government’s case.
The government had also prepared a list of the cases related to crimes stemming out of the 2008 post election violence which had been investigated and concluded, those that were pending and those that were concluded.
Also attached to the application were the promulgation of the new Constitution, and the number of Bills that had been enacted by Parliament to reform the Judiciary, the Kenya Police and the department of Prosecutions.
It stated: “An investigation into the six suspects is under way in a country that has undergone, and is continuing to undergo, reform of police and judicial procedures that have to be accorded respect not just for what they will provide in the future but for what they guarantee now for the due process that will be brought to the investigation and to any trial of any of the six suspects.”
ICC Prosecutor Luis Moreno-Ocampo dismissed the government, arguing that he took over the case because it had failed to try the key players in the violence.
On December 15, 2010, he named the individuals as deputy Prime Minister Uhuru Kenyatta, suspended minister William Ruto, Tinderet MP Henry Kosgey, Head of Civil Service Francis Muthaura, Postmaster General Hussein Ali and Kass FM radio presenter Joshua Sang.
They have since gone before the Pre-Trial Chamber for an initial appearance. Hearings for the confirmation of charges will begin on September 1 and September 21.
In their ruling on Monday, which saw Judge Hans-Peter Kaul append his signature to the ruling stating that the case was admissible even though he dissented when Mr Moreno-Ocampo sought to start investigations, they dismissed the arguments by Kenya’s attorneys and allowed the case to proceed to the confirmation stage.
“Although the information provided in these two annexes reveals that instructions were given to investigate the three suspects subject to the Court’s proceedings, the Government of Kenya does not provide the Chamber with any details about the asserted, current investigative steps undertaken,” they said.
The judges said the government's supportive documents did not show the dates when the investigations were initiated against the Ocampo Six and whether they have been questioned over the crimes they allegedly committed during the violence.
They also faulted the government for failing to submit both police and prosecutions’ reports on the investigations and initial trials.
“The Government of Kenya also fails to provide the Chamber with any information as to the conduct, crimes or the incidents for which the three suspects are being investigated or questioned. There is equally no record that shows that the relevant witnesses are being or have been questioned,” they said.
The judges were categorical that any bid to challenge admissibility of the case must be supported by facts of existing investigations, which the government failed to provide.
“The admissibility of the case must be determined on the basis of the facts as they exist at the time of the proceedings concerning the admissibility challenge,” they said. The judges argued that since the government failed to provide the information, it meant that there were no investigations and prosecutions over the 2008 post election chaos crimes.
Referring to a letter by Mr Muhoro which indicated that there was a pending case against Mr Ruto (file No 10/2008), the judges tore into the government defence stating that Kenya’s investigators were caught off guard by the names of suspects released by Mr Moreno-Ocampo.
“ When the ICC Prosecutor finally disclosed the names of what came to be known as the Ocampo Six, the police investigators were taken by surprise. This was because other than William Ruto, none of the members of the Ocampo Six have been mentioned previously during the investigations.”
They argued that it was not enough for Mr Iteere to state that he was ready to go before the judges to show that investigations were on- going.
They were unanimous that the government had not embarked on any investigations and decided to dismiss the case.
“The Chamber considers that there remains a situation of inactivity. Consequently, the Chamber cannot but determine that the case is admissible,” he said.