Judge puts off quizzing of security chiefs

Another attempt to record evidence from security chiefs and administrators on the post-election violence failed on Tuesday.

It raises the prospect of International Criminal Court chief prosecutor Luis Moreno-Ocampo seeking the court’s permission to prosecute post-election violence suspects without hearing from security chiefs and administrators.

Mr Ocampo is expected in court before December 17, where he will ask that six suspects he considers to bear the heaviest responsibility for the violence be indicted.

Coast PC Ernest Munyi was ready at Anniversary Towers, where Lady Justice Kalpana Rawal was expected to start recording statements. Former Central Provincial Police boss Phillip Ndwiga was also expected at the venue.

ICC investigators and lawyers who are in the country as part of the investigation team were also expected.

Instead, Lady Justice Rawal postponed the sessions to December 20. Lawyers representing the police force and the administrators want assurances that their statements will not be used to prosecute them.

It is the second time the evidence-taking has failed to take off.

On November 24, the security chiefs demanded that they be provided with questions before they meet the ICC  officials and, a day later, Judge Rawal ruled that the statement taking would resume on Tuesday.

Mr Ocampo has said he will file two cases involving six individuals suspected of masterminding the violence, which left 1,133 people and a further 650,000 uprooted from their homes, before December 17.

The statements of provincial commissioners and provincial police chiefs are viewed as key to Mr Moreno-Ocampo’s case as initial investigations by Kenyan commissions indicated that more than 400 deaths were as a result of gunshots.

It is also alleged that during the chaos, there was a shoot-to-kill order whose origin is yet to be properly established.

Chapter 11 of the Waki report on post-election violence questions whether former police commissioner Maj-Gen Hussein Ali interfered with operations of his juniors.

According to the document, statements by two former provincial police officers indicate that on at least three occasions, the police boss instructed that violence suspects be released.

While making the ruling, Lady Justice Rawal said that her “sole duty and purpose is to undertake the process fairly and taking into consideration interest of justice.”

And speaking to the press after the ruling, Lady Justice Rawal said that she had postponed the interviews to give the security chiefs time to deal with the application they had filed at The Hague.

She said she would proceed with the evidence taking, even if the ICC determined the case before December 20.

“I have agonised over this application and doing the best, I direct that I give time to the applicants, up to December 19, 2010, to prepare to proceed with the proceeding with or without the finalisation of the application before the ICC,” said Lady Justice Rawal.

She, however, said that though she was making the ruling based on the legal issues raised, she was concerned over the last minute applications by the security chiefs and their lawyers.

“What I want is to express my strong displeasure on the fact that at all times, the recourse is made at the last moment and the proceedings have failed to proceed,” she said.

She added that in her view it was time for the applicants “to meet their declared intention to give evidence” which she said would be protected under the law.