State secrets ground won’t stop ICC: Team
It has emerged that the government cannot stop ICC prosecutor Luis Moreno- Ocampo from claiming that post-election violence was planned at State House. Photo/ FILE
What you need to know:
- Citing national security alone won’t make judges reject evidence on State House meetings to plan revenge attacks in Naivasha, warns report
The government cannot stop ICC prosecutor Luis Moreno- Ocampo from claiming that post-election violence was planned at State House, it emerged on Tuesday.
A report by a high-level panel advising the government on the cases at the International Criminal Court (ICC) says the government would have to prove grounds on which national security will be compromised if the prosecution evidence is admitted.
“As noted by the Pre-Trial Chamber in the Kenya cases, the reference alone to ‘State House’ in the evidence ‘is not convincing in itself to justify an automatic reference to national security interests,” says the panel whose mandate ended on Saturday.
The team pointed out that not every disclosure of national security information was prejudicial to national security interests.
“Any application by the government for the protection of information on grounds of national security could only be based on legitimate national security interests,” the lawyers state.
Mr Moreno-Ocampo claims meetings to plan revenge attacks in Nakuru and Naivasha were held at State House Nairobi.
The lawyers warn that the government may find it difficult to protect information it has already given to the ICC on grounds that it touches on national security.
Protect information
“While the government has a right to seek to protect information and documents that could prejudice its national security interests, it should be aware that upon application, the court could take the view that such a right does not extend to information it disclosed or made available to the court.”
The report says the authorities had the opportunity to sift through documents before handing them over.
“This conclusion is based on the fact that the government would have or should have taken advantage of the provisions of Article 72(5) of the Rome Statute which gives the State a right to refuse to provide information to the court on national security grounds and to be allowed to disclose information in a form that does not prejudice national security interests,” they further note.
The ICC ruled in January that Mr Uhuru Kenyatta, Mr William Ruto, Mr Francis Muthaura and Mr Joshua arap Sang have cases to answer in connection with the chaos in which 1,133 people were killed in 2007/8. (READ: Youth petition Kibaki over Mungiki link)
