AG Githu Muigai and DPP Keriako Tobiko biased, say victims

Post-election violence victims have questioned the independence of the Attorney-General and the Director of Public Prosecutions for consistently siding with President Uhuru Kenyatta at the International Criminal Court.

Through their lawyer Fergal Gaynor, the victims accused AG Githu Muigai and DPP Keriako Tobiko of acting like defence lawyers by obstructing cooperation by the government.

Through Mr Gaynor, the victims also argued that President Kenyatta “was ultimately responsible for any failure by Kenya to comply with its obligations under the Rome Statute” as the Head of State and government. (READ: Githu fights request to summon witnesses)

“The President has a constitutional obligation to uphold the Constitution and the rule of law, and to ensure that Kenya’s international obligations are fulfilled through the relevant Cabinet Secretaries,” he said.

The lawyer added: “Any failure by Kenya to comply with its obligation to cooperate under the Rome Statute is the responsibility, in the first instance, of the Attorney-General (or the Minister of the Interior, in respect of certain functions) and ultimately the responsibility of the President. The President is ultimately responsible for any act or omission by the Attorney-General or any relevant minister resulting in a violation by Kenya of its cooperation obligations under the Rome Statute,” said Mr Gaynor.

The lawyer’s submissions on February 20 were in response to Prof Muigai’s argument in which he wants the ICC to dismiss the charge by Prosecutor Fatou Bensouda that the Kenyan government was not complying with its obligations under the Rome Statute. A key concern was that the government had failed to provide the prosecution with Mr Kenyatta’s financial records.

President Kenyatta, his deputy William Ruto and radio journalist Joshua arap Sang have been charged at the ICC with bearing the greatest responsibility for the 2007/2008 post-election violence in which at least 1,300 people died.

ALIGNED WITH INTERESTS OF ACCUSED

Mr Gaynor also cast doubts on the independence of the AG from the President with regard to the ICC.

“The DPP and the Attorney-General take decisions in a manner which is de jure (by law) independent of the President. However, de facto (in practice) it must be recognised that senior figures in government – including the AG and DPP – have consistently taken positions which are fully aligned with the interests of the accused and opposed to the interests of victims of the crimes charged in this case,” said Mr Gaynor.

He cited the October 2013 African Union extraordinary summit in which he suggested the AG was part of the delegation and played a prominent role in arguing for immunity for sitting heads of state.

He also said the two officers had played a prominent role in efforts to defer the trial against Mr Kenyatta at the UN Security Council last year. The victims’ lawyer also argued that Prof Muigai’s presence and lobbying for excusal for sitting presidents and deputy presidents at the Assembly of State Parties in The Hague last November raised questions about the independence of his office.

As such, he said, the AG’s inaction to fully execute the requests for cooperation by the Office of the ICC Prosecutor cannot be blamed on the Kenyan Judiciary but rather was Prof Muigai’s own making for allegedly taking instructions from the accused.

“It is now clear that the victims will receive no justice in Kenya for the crimes committed. The impact of this must be emphasised: there will be no accountability at the Kenyan courts for those responsible for the horrific crimes, nor for any crimes committed during the post-election violence,” Mr Gaynor said.