Githu tells off Bensouda over Hague case sabotage claims

Attorney-General Githu Muigai on Monday accused International Criminal Court Prosecutor Fatou Bensouda of attempting to shift global attention on her failures by continuously claiming that the government refused to cooperate with her on the Kenyan cases.

In a strongly worded response to Ms Bensouda’s statement last week that the government had failed to honour arrest warrants against three Kenyans she has accused of tampering with witnesses, Prof Muigai said the prosecutor was persistently being insincere about what the country had done for her office when she was pursuing the cases.

Ms Bensouda, who issued the statement after the remaining Kenyan case — against Deputy President William Ruto and radio presenter Joshua arap Sang — at the ICC was declared a mistrial last Tuesday, said the government had dragged its feet in executing the arrest warrants for Mr Walter Barasa, Mr Philip Bett and lawyer Paul Gicheru, given by the court last year.

However, Prof Muigai said Kenya had been the most cooperative of all nations that have had cases at the ICC and that the prosecutor had never appreciated the gesture.

“Instead of honestly applauding and thanking the republic for the significant and meaningful cooperation accorded thus far, Ms Bensouda has engaged in didactics regarding Kenya’s responsibilities,” said Prof Muigai.  

The government’s chief legal adviser has on many occasions clashed with the ICC prosecutor during proceedings and the latest statement is only an escalation of the verbal battles between the two.

“It should not be forgotten that the Republic of Kenya and the African Union unanimously supported Ms Bensouda and elected her as prosecutor of the ICC in the belief that she would bring fairness, professionalism and a critical eye to the Office of the Prosecutor that had been so seriously eroded by her predecessor, Mr Luis Moreno-Ocampo,” said the AG.

Ms Bensouda, a judge from The Gambia, was unanimously picked by the ICC’s Assembly of State Parties to take over from the Argentine, who initially handled the two Kenyan cases at the global court based at The Hague, in The Netherlands. Before her elevation in 2012, she deputised Mr Moreno-Ocampo.

The AG, who appeared before the ICC a number of times when the cases were being heard as a friend of the court or when called upon to do so by the judges, said there was nothing that would have salvaged “the moribund cases presented by the prosecution”.

He said: “In fact, even when it comes to myself as Attorney-General, the record discloses that I am the only Attorney-General of any country to have appeared before the ICC, not once but three times, in person and made oral submissions before the Court. This is in addition to making filings to the Trial Chambers, Appeals Chamber, correspondence to the Prosecutor and the Registry,” added Prof Muigai.

Ms Bensouda, who was prosecuting cases against President Uhuru Kenyatta, Mr Ruto, Mr Sang and Mr Francis Muthaura, last week said after the court declared a mistrial in the case against Mr Ruto and Mr Sang: “I call on the authorities of the Republic of Kenya to fulfil their obligations under the Rome Statute and surrender these three suspects to the court without further delay, so their guilt or innocence of the charges against them may be ... determined in a trial.”

Prof Muigai however said Kenyan police had helped the prosecutor to look for witnesses.