Wako comes to the rescue of ICC probe

Attorney-General Amos Wako has asked Chief Justice Evan Gicheru to appoint a judge to witness the interviewing of top government officials by international investigators over the election violence.

Mr Wako has also written to the leader of the International Criminal Court investigators, who has since returned to The Hague, informing him that the government has accepted their request to question provincial commissioners, district commissioners and police bosses, according to a source in Mr Wako’s chambers.

Government’s dealings with ICC

The AG’s action is the latest development in the government’s dealings with the ICC, which has caused tension between the Grand Coalition partners.

Last week, ICC investigators summoned some provincial police bosses and PCs, some who are either no longer in the civil service or have been moved to other jobs in government, to the CID Training School on Mombasa Road to record statements.

However, the government officers declined, pointing out that they could only do so in the presence of a judge as provided for by the International Crimes Act. They then retained the services of lawyers Evans Monari, Ahmednassir Abdullahi, Ken Ogeto and Gershom Otachi to record the statements on their behalf.

The ICC request and the concerns of the officials from five provinces have been on Mr Wako’s desk since last week. The AG, who returned from a two-week trip to China at the weekend, has worked on the documents and written the letters.

“The PCs, DCs and PPOs will soon be writing those statements because the matter is now with the CJ and if he can expedite the process, it won’t take long,” the source said.

Disputed Presidential election

The officers ICC investigators want to question served in the Rift Valley, Nairobi, Nyanza, Western Kenya and Coast provinces during the chaos following the disputed December 2007 Presidential election.

While the ICC investigators have been taking statements from other witnesses with relative ease, they hit a wall with provincial administrators and police bosses, who argued that they acted in their official capacities.

This prompted The Hague to invoke the provisions of the International Crimes Act — a domestication of the Rome Statute which established the ICC— and request the government to facilitate the taking of evidence from the officials.

The request is provided for in Section 25 (1) of the Act which says: “A request for assistance and any documents supporting the request shall be kept confidential by the Kenyan authorities who deal with the request, except to the extent that the disclosure is necessary for execution of the request.”

The government can either accept or decline the request. The Act provides that should the government accept to act on the request, it should do so expeditiously.

It states in Section 26 (1): “The Attorney-General or the Minister, as the case may be, shall notify the ICC, without delay, of his response to a request for assistance and of the outcome of any action that has been taken in relation to it.”

However, the ICC has a long way to go to access the minutes of the two secret meetings that hold key evidence to the perpetrators of post-election chaos.

Meanwhile, politicians continued to trade accusations over the alleged introduction of politics into the ICC issue. MPs Cyrus Jirongo and Johnstone Muthama criticised PNU MPs opposed to the ICC, saying the government must cooperate with The Hague.

Mr Jirongo, the Lugari MP opposed the setting up of a local tribunal to try the suspects arguing that Parliament had voted against it three times.

“Calling for a local tribunal or home-grown solutions for the masterminds of the skirmishes after such calls were defeated earlier on is adding insult to injury. It indicates how insensitive some people can be to those who suffered immense losses when all hell broke loose,” he said.

Mr Muthama, the deputy government chief whip, differed with his party (ODM Kenya) leadership and demanded that the suspects be tried at the ICC.