Appeal for ICC evidence rejected

Thursday June 30 2011

By OLIVER MATHENGE, omathenge@ke.nationmedia.com

Kenya will have to gather its own evidence on the Ocampo Six after the International Criminal Court rejected the government’s request for assistance.

In the ruling, Pre-Trial Chamber II judges said they rejected the government’s request for assistance because Kenya submitted a two-page Cooperation Request, which lacked any documentary proof that there was or has been an investigation against the suspects.

In the Cooperation Request, the government had sought statements, documents, or other types of evidence obtained by the court on the 2007/08 post-election violence.

According to the government, this would help the authorities advance their investigations on the violence, including those involving the suspects.
To grant the request, the judges said, Kenya must have at least either conducted an investigation, or doing so.

They said that Kenya failed to offer proof that there were ongoing investigations or prosecutions related to the crimes that the violence mastermind suspects were facing at The Hague.

The judges stated that article 93(10) of the Rome Statute was clear that the court was under no obligation to comply with a cooperation request submitted by a state.

They, however, noted that they ruled on such requests after properly scrutinising them but they could not order the prosecutor to provide his evidence to a state.

“The Chamber cannot order the prosecutor to provide any material or evidence in his ‘possession’ to any state as this is a matter that falls entirely within his power.

“The Chamber can grant a request for cooperation and assistance only in relation to material or evidence in its actual possession,” the judges ruled.

The government has been trying to access evidence held by ICC prosecutor Luis Moreno-Ocampo in its bid to kick off investigations against the post-election mastermind suspects to justify its quest for a challenge on the admissibility of the cases at the ICC.

The six Kenyans facing charges at the ICC are Eldoret North MP William Ruto, radio presenter Joshua Sang, Tinderet MP Henry Kosgey, Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura and post-master general Hussein Ali.