Kenya AG orders probe on Ocampo witnesses' claim

Attorney General Githu Muigai has ordered Kenyan security agencies to investigate claims by International Criminal Court Prosecutor Luis Moreno-Ocampo of email hacking and intimidation of witnesses.

Prof Muigai directed the police and the National Security Intelligence Services (NSIS) to probe the matter expeditiously

Thursday.

In a statement, Prof Muigai said that he had received a complaint from Mr Moreno-Ocampo that there was “hacking of email accounts of a person of interest” to his office. He added that the ICC prosecutor has also complained that there has been intimidation of ICC witnesses.

“I have directed the Commissioner of Police, Director of Criminal Investigations Department and Director of National Security Intelligence Services to immediately and thoroughly investigate the allegations and report back to me forthwith,” Prof Muigai said.

He added that the same instruction have been given to the Director of the Witness Protection Agency in regard to intimidation of witnesses.

Prof Muigai also said he has communicated to the Director of Public Prosecutions Keriako Tobiko on the need to include these complaints in the matters concerning the post-election violence that are currently under review.

“Without prejudice to the ongoing investigations, I wish to caution that any person guilty of interfering in any way with the process of the cases before the ICC or meddling in the local investigations relating to the post-election violence case, is liable and shall face the full force of law."

The ICC prosecutor has complained in the recent past that some people in Kenya were trying to interfere with his witnesses. He has, however, also insisted that none of  his witnesses are in the country.

Meanwhile, lawyers representing victims have urged the judges not to grant appeals by the four Kenyan suspects challenging the validity of the cases being heard by the ICC.

Lawyers Sureta Chana and Morris Anyah joined Mr Moreno-Ocampo in asking the Appeals Chamber to allow the cases to continue. In separate submissions, the two argue that the suspects are challenging the assessment of evidence of the Pre-Trial Chamber judges instead of making legal arguments.

For a case to be ruled as inadmissible before the court, the suspects have to prove that there was no common plan or organisation policy with an aim of widespread and systematic attacks against a civilian population.

In her submission, Ms Chana argues that William Ruto and Joshua Sang, as Kalenjin leaders, had “the de facto authority and capability to influence and command the militia to commit crimes against humanity.” She argues that the evidence provided by the prosecution and other reports on ethnic violence in Kenya, the two were part of an organisation that carried out the violence in Rift Valley.

“The historical use of tribal militia is a reality. The Kikuyu have the Mungiki as their militia arm. Similarly, the Maasai and Kisii leaders have, since 1992,  have their tribal “militia” (“Moran” and “Chinkororo”, respectively). It is noteworthy that even when a politician has the state machinery at his or her disposal they opt to use tribal “militia” either on its own or in conjunction with the state machinery,” Mr Chana argues.

Mr Anyah makes similar arguments saying that crimes against humanity must, as a preliminary threshold, be targeted against a group of persons. He says that Uhuru Kenyatta and Francis Muthaura organised the Mungiki to carry out attacks against persons who were perceived to be ODM supporters.

“The role of Kenyatta and Muthaura with respect to the Mungiki relates to the question of their individual criminal responsibility,” Mr Anyah says.

Mr Moreno-Ocampo has held similar arguments stating that the Appellants have failed to demonstrate the existence of any reversible error.  The prosecutor supported the position held by the Pre-Trial judges that Mungiki qualified as an ‘organisation’ since it has the capacity to carry out widespread and systematic attacks on civilians.

The prosecutor dismissed claims by Mr Ruto and Mr Sang that the so called “Network” did not qualify as an organisation adding that in any case that was a matter of interpretation which would be handled by the trial court. He said that the network has the capacity to commit widespread and systematic attack on civilians as witnessed in the Kenyan case thus met the criterion spelt out the Rome Statutes.

Mr Ruto and Mr Sang are accused of having organised attacks against PNU supporters in Rift Valley following the controversial announcement of President Kibaki as the winner of the 2007 elections. The two are accused of murder, deportation or forcible transfer of the people, causing serious injury and persecution.

Mr Kenyatta and Mr Muthaura are accused of having organised the Mungiki and pro-PNU youth to revenge attacks by ODM supporters in Rift Valley. They each faces charges of crimes against humanity, specifically murder, deportation or forcible transfer, persecution and rape. The Pre-Trial Chamber judges dropped a charge on other inhumane acts brought against them by Mr Moreno-Ocampo.