Handling of secrets may derail ICC case

The minutes of secret meetings could hold the key to the success of investigations and prosecutions by The Hague in Kenya.

A government source told the Nation that the government is still holding on to the minutes of sensitive security meetings and that the information in those minutes could be crucial to prosecutor Luis Moreno-Ocampo’s successful trial of the cases.

Targeting one community

The revelation came as MPs clashed over claims that the International Criminal Court was targeting one community in its latest investigations.

The government source said consultants, retained by figures in the coalition, have analysed the Pre-Trial Chamber’s ruling and allegedly concluded that it provided a window for the case to be defeated.

Mr Ocampo will need additional information to prove his case before the judges since the threshold of proof will be higher this time, the consultants concluded, according to the source.

“Who knows whether a second judge will this time round return a negative verdict on Ocampo’s evidence?” posed the source, who is a top government official.

He was referring to the Pre-Trial Chamber ruling in April which granted the ICC prosecutor authority to investigate Kenya.

Judge Ekaterina Trendafilova, who was the chair, and Judge Cuno Tarfusser were convinced that crimes against humanity were committed during the chaos.

But Judge Peter-Hans Kaul dissented, arguing that the violence did not meet the standards of The Hague. He argued that the crimes committed did not amount to crimes against humanity.

Last month, the ICC wrote to the government twice asking for minutes of top security meetings and an alleged session at State House that the Waki Commission report linked to the violence in one of the two main violence hot spots.

On Sunday, sources said even though the government is obliged by the Rome Statute to cooperate with the ICC, it faced the dilemma of handing over minutes of sensitive meetings, which covered issues that had nothing to do with post-election violence.

The sources said the ICC’s demands went against one of the cardinal rules in sharing such information, which requires security and intelligence information to be shared only with people needing it for their work.

For instance, said the source, some of the minutes of the meetings the ICC was asking for included other classified information that did not relate to the post-election violence but touched on sensitive issues on the sovereignty of the country.

A Cabinet committee dealing with the ICC and chaired by Internal Security minister George Saitoti has declared it will vet all documents before they are handed over to the investigators.

Attorney general Amos Wako and National Security Intelligence Service boss Michael Gichangi will carry out the initial scrutiny of information.

PNU MPs Ephraim Maina and Jamleck Kamau on Friday accused the ICC of targeting one community and produced a document from the UN to support their claims.

On Sunday, Mr Maina said they will compel Prof Saitoti to table the UN document.

“We are sure it is from the ICC, but the report is flawed and it cannot be used for purposes of achieving justice,” he said.

Vice-President Kalonzo Musyoka at the weekend added to the claims by stating that PNU will not allow biased evidence to be used in the investigations.

On Sunday, his spokesman, Mr Kaplich Barsito said: “The VP did not attack the ICC. He challenged them to carry out impartial and unbiased investigations that will not be seen to inflame ethnic passions.”

However, Ms Patricia O’Brien, an ICC official, dismissed the report saying all the court’s documents are posted on its Website.

—Reports by Bernard Namunane, Eric Oloo, John Njagi, Oliver Mathenge and Francis Mureithi