Cabinet team to draft rules to guide ICC probe

FILE | NATION. Justice Minister Mutula Kilonzo (pictured) has confirmed that the Cabinet subcommittee chaired by Internal Security Minister Prof George Saitoti would meet on Tuesday to fast-track the process to enable ICC investigators to record statements.

A Cabinet subcommittee is set to meet on Tuesday to draft regulations that will guide the process of recording statements from top Kenyan government officials believed to hold crucial leads to the bloody 2007 post-election violence.

Justice Minister Mutula Kilonzo Sunday confirmed that the subcommittee chaired by Internal Security Minister Prof George Saitoti would meet on Tuesday to fast-track the process to enable ICC investigators to record statements.

“We are meeting on Tuesday to fast track this process by making the regulations to guide the recording of statements,” he said.

The International Criminal Court (ICC) investigators will start recording statements from government officials who were in charge of security at the height of the violence from this week

This follows the appointment of High Court judge Kalpana Rawal last week to witness the recording of the statements by ICC investigators.

On Sunday, Mr Kilonzo said: “We want the ICC investigators to move fast and record the statements so they tell us whether international crimes were committed in the country or not.”

“I expect Justice Rawal to start moving immediately because the Evidence Act can still be applied in the recording of the statements. We do not want people to say that the government is trying to delay the process of recording statements,” he added.

Attorney General
The ICC team is also expected to meet Attorney General Amos Wako and lawyers representing the security chiefs on the same day.

The security chiefs had been directed by the government to record the statements but they declined and sought legal assistance.

The law requires that involuntary statements be taken before a judge, hence the appointment of Justice Rawal. The International Crimes Act also requires that Prof Saitoti publishes rules under which Justice Rawal will take the statements - the reason for Tuesday's meeting by the Cabinet subcommittee.

Mr Kilonzo confirmed that the committee would also go through the minutes of security meetings held at the height of the post-election violence which ICC detectives have also requested for to help it establish whether security chiefs in the post election violence hotspots issued shoot-to-kill orders resulting in the deaths of hundreds of innocent civilians.

At least five Provincial Commissioners (PCs), six provincial police officers (PPOs) and dozens of district commissioners, who served in the areas that were hit by the violence are expected to record statements with the ICC team.

The officials have retained lawyers Evans Monari, Ken Ogeto and Gershom Otachi to represent them. Lawyer Ahmednassir Abdullahi is representing the National Security Intelligence Service (NSIS).

Criminal responsibility

The Rome Statute places criminal responsibility on the bosses for the crimes committed by juniors. This is when either the bosses were aware of the crimes that their subordinates were committing or could have controlled their actions.

Mr Wako also wrote to the ICC team leader, who had flown back to The Hague, informing him of the preparations to record statements from the government officials.

ICC investigators are said to be relying on information given to them by witnesses and jailed Sabaot Land Defence Force members on how the post-election violence was financed.

The investigators are also said to be following the money trail from the accounts of influential politicians to militia gangs, who unleashed terror during post-election violence.

The PPOs and PCs the ICC is interested in are those who served in Rift Valley, Nyanza, Western, Nairobi and Coast provinces at the time of the violence.

The PCs in office at the time were Ernest Munyi (Coast), Abdul Mwasera (Western), Noor Hassan Noor (Rift Valley), James Waweru (Nairobi) and Paul Olando (Nyanza).

The PPOs include Grace Kahindi and Antony Kibuchi (Nyanza), Everet Wasige (Rift Valley), King’ori Mwangi (Coast), Francis Munyambu (Western) and Njue Njagi (Nairobi).

An official conversant with the work of the ICC told the Nation that the investigators will take statements from Cabinet ministers and MPs named in all the reports issued in connection with the violence. This includes the Waki report and that of the Kenya National Commission on Human Rights.

Several prominent personalities named in the KNCHR report have denied wrong-doing and gone to court to have their names expunged.

They include Finance minister Uhuru Kenyatta, Higher Education minister William Ruto and Tourism minister Najib Balala.

Former Naivasha MP Jayne Kihara and Eldoret farmer Jackson Kibor have also come forward to deny any involvement in the violence.

The investigators are said to have received evidence on how the chaos was planned, funded and executed from former soldiers who are alleged to have trained youths who caused the mayhem.

More than 1,133 people were killed and over 650,000 evicted from their homes in two months of violence that followed the disputed 2007 presidential election. The chaos ended after a power-sharing deal that brought in the Grand Coalition Government.