ICC wants victims’ medical data and Sang’s recordings

The International Criminal Court (ICC) has written to the Kenya Government requesting it to make available all medical records of post-election violence victims.

Through the Office of the Registrar, the court also wants the government to assist it to obtain tape recordings of one of the suspects, radio presenter Joshua arap Sang’s programmes from 2006 to 2008.

The two requests were discussed during last week’s meeting of the Cabinet sub-committee handling ICC matters.

The sub-committee is chaired by Internal Security minister George Saitoti and comprises Justice minister Mutula Kilonzo, his Lands counterpart James Orengo, Immigration minister Otieno Kajwang, Nairobi Metropolitan minister Njeru Githae, Fisheries Development minister Amason Kingi and Attorney-General Githu Muigai.

A source who attended the meeting told the Sunday Nation that the ministers decided to refer the request for access to medical records of the victims to the AG’s office and the Director of Public Prosecutions for direction.

This is after one of the ministers pointed out that the government exercises care in discharging the requests so that it does not infringe on the rights of the victims.

“We referred this particular matter to the AG and the Director of Public Prosecutions because you realise the Constitution guarantees rights such as confidentiality of one’s medical records,” the source, who cannot be quoted discussing confidential State matters, said.

They also referred the request to provide tape recordings of Mr Sang’s programmes to the Media Council of Kenya for facilitation.

Media Council executive director Hiram Mwangi when contacted said the request was yet to reach the government funded media watchdog but top officials revealed that they were aware of the request.

“We know about it, we have actually compiled all the tapes they want,” said a national official who is not authorised to speak on behalf of the council.

A lawyer representing former Police Commissioner Hussein Ali, Mr Evans Monari, confirmed having seen a copy of the two requests.

“I have seen the copies, it just goes a long way in confirming our repeated position that the prosecutor never investigated the cases.

“It is now that he is starting to investigate the cases and that is why he wants the records and the tape recordings,” Mr Monari stated.

He warned the government against releasing the medical records of the victims without consulting as this would infringe on their rights to confidentiality.

“The government must tread carefully when releasing these records because the law requires that one must be consulted, it is their constitutional right.”

He also expressed doubts that the ICC would succeed in obtaining the tape recordings.

“The law obligates the Communications Commission (of Kenya) to keep such material for only six months after which it can destroy them so it is unlikely that it could still be keeping the tape recordings four years down the line,” he said.

The requests coincided with a full-page advertisement educating the public about the implications in the event that the pre-trial chamber commits the six Kenyans facing charges relating to the post-election violence to full trial.

In the advertisement, the ICC assured Kenyans that the suspects would not be arrested if the charges facing them are confirmed as feared by some of their supporters.

The requests come only weeks after the ICC wrote to the government requesting it to stop the six suspects from transferring assets they own to third parties until the disposal of the cases in The Hague.

The ICC wants the State to place caveats on all movable and immovable property the suspects possess to avoid transfers which would complicate efforts to seize property if a guilty verdict is rendered at the end of the process.

The request is understood to have caused considerable discomfort within government with few officials willing to act on it.

The assets letter was initially addressed to Prof Saitoti who passed it on to then Attorney- General Amos Wako who, in turn, kept it in the pending tray until he handed the matter over to his successor, Prof Muigai.

Finance minister Uhuru Kenyatta, Eldoret North MP William Ruto, Tinderet MP Henry Kosgey, Public Service head Francis Muthaura, Mr Ali and Mr Sang are battling charges that they bear the greatest responsibility for the 2008 violence.

A decision on whether to confirm charges for crimes against humanity against them must be made by January 19.

The Rome Statute which created the ICC requires states to cooperate on a wide range of issues including the seizure of assets. The provision on appropriation of assets is supposed to be activated in case the judges’ order that the property of those convicted should be sold to compensate victims at the end of the trial.

Article 93(1,k) outlining areas of cooperation between the court and state parties says governments should help in the “identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties.”

The statute says that apart from imprisonment suspects may also be subject to fines for their crimes and state parties must be ready to assist the court to secure the funds in case a fine is imposed.

Article 109 demands that “State Parties shall give effect to fines or forfeitures ordered by the Court…without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law …Property, or the proceeds of the sale of real property which is obtained by a State Party as a result of its enforcement of a judgment of the Court shall be transferred to the Court.”

The ICC demand for seizure of assets gave the authorities a major challenge because of the status of the suspects and the political environment heading into an election year.

The state has cooperated in helping to protect witnesses and allowing ICC staff diplomatic status while operating in the country.