International Criminal Court prosecutor Luis Moreno-Ocampo is fighting calls for sanctions over claims of misconduct raised by two of Kenya's post election violence.
Eldoret North MP William Ruto and radio presenter Joshua Sang had written to the ICC judges asking them to sanction the Prosecutor for embarrassing the court by asking the judges to make findings on “baseless assertions and allegations” in an application seeking to block them from accessing his evidence.
They argued that Mr Moreno-Ocampo was using information from the media and NGOs without foundation against the integrity of the domestic judicial proceedings and government actions in Kenya.
But in response, the Prosecutor has termed the arguments by the two suspects as “devoid of legal and factual merit”. He has threatened to seek sanctions against the suspects if the attacks on his office continue.
“The Prosecution will seek sanctions if the pattern of baseless accusations levelled against the Prosecution continues. The Prosecutor has the discretion to conduct the investigation as he wishes and select sources that he believes are appropriate,” Mr Moreno-Ocampo told the judges.
He added that it is incorrect for the defence to ask the court to reprimand him for “violating the Code of Professional Conduct” arguing that it does not apply to the Prosecution.
Even if it did apply, he said, the Prosecution did not deceive or knowingly mislead the Chamber.
Mr Moreno-Ocampo has also told the court that because the ‘Request for Assistance’ by the Kenyan government addressed the transmission of statements, documents or other types of evidence, his response falls within his office’s scope and mandate to protect victims and witnesses.
Mr Moreno-Ocampo also asked the judges to dismiss the two suspect’s request that they strike off his opposition to Kenya’s request from their records as it had been filed “improperly”.
“The basis for the Request to Strike the Prosecution’s Response appears to be that the response was filed improperly in the “Case” rather than in the “Situation”. This claim is frivolous,” Mr Moreno-Ocampo said.
ICC rules sets out the possibility that the Chamber may, after warning an official of the Court, interdict that person from the proceedings and from exercising their functions on a temporary basis.
Mr Ruto, Mr Sang and Tinderet MP Henry Kosgey also want the judges to strike the document from their records and thereby disqualify the filing from the Chamber’s consideration in the admissibility challenge filed by the Kenyan government.
“Should the filing be re-filed in the Kenya situation, the Pre-Trial Chamber should order the Prosecution to formally apologise to the Defendants and withdraw all unfounded and prejudicial allegations,” the three told the judges in their arguments.
They also argued that there is no foundation for the Prosecution’s decision to file its response adding that it is prejudicial to the rights of the Suspects having appeared in response to the summons and there being no allegation that they are in breach the conditions set by the Chamber.
“The Defence is concerned that the Prosecutor has under the guise of responding to the said Request by the Government of Kenya, mounted a scurrilous attack on the suspects without identifying their individual culpability,” the suspects told the judges.
In his submission, Mr Moreno-Ocampo argued that he used recent developments and which he has picked from media reports to support his quest to deny Kenya access to his evidence.
One of his points of argument relates to Mr Ruto whose fraud case was recently dismissed by the Kenyan courts for lack of sufficient evidence.
“In particular, it is noteworthy that five witnesses slated to testify against him died before trial, 13 witnesses disappeared and could not be located, and remaining witnesses who survived and were available to testify recanted their previous incriminatory accounts and exculpated Ruto,” the ICC prosecutor argues.
He also quoted Kenyan newspapers on April 28 reporting on the killing of former senior Deputy Commissioner of Police in charge of the Kenya Police Training College, Bernard Kimeli.
“He was killed in his house in a rich and well-protected suburb of Nairobi. Media reports and comments on Kenyan websites and blogs allege that his murder was probably linked to OTP investigations because his attackers only took documents from his house,” Mr Moreno-Ocampo argues.