Kenya has declined request by the International Criminal Court for minutes of high-level security meetings during the clampdown on post-election violence, claiming it would prejudice ‘national security’.
The Government’s response is coached so as not to make Kenya appear to be shirking its responsibilities as a signatory of the Rome Statute or betraying its official assurances to ICC.
The Government argued ICC’s “blanket demands”, were “prejudicial to the national security interests of Kenya”, and cannot therefore be honoured”.
The request appears to be a key plank in the two cases ICC this week reconfirmed it would be commencing against four to six Kenyans in December.
It is not clear what documents the Government early in the month conceded had been sent to ICC Registrar Silvana Arbia.
But what is clear from a copy of a letter from The Hague to Internal Security Minister George Saitoti is that, another ICC team was to be in the country from last Monday, to follow-up on the request for the minutes as well as “internal administrative regulations of the Administrative Police”.
“I look forward to full co-operation with the Kenyan Government on investigations by ICC and swift execution of the outstanding requests by the competent authorities of the Republic of Kenya.”
The burden of reply was shifted to Attorney General Amos Wako after the sub-committee weighted the political implications of passing on the minutes.
The State also asked ICC to furnish it with the source of the information it is seeking to verify through the minutes.
“The request must have emanated from the information which you have gathered.
Promises
The Government of Kenya wants to co-operate with you in fulfilment of its obligations É you are therefore kindly requested to identify or give us particulars of specific minutes setting out succinctly the reasons such documents are deemed relevant,” Wako told the Office of the Prosecutor.
Regarding ICC’s request for Government facilitation to interview in Nairobi PCs and Police chiefs in Nyanza, Central, Coast, and Rift Valley – probably to ascertain the source of security orders – Wako bluntly said this must be restricted to PCs and PPOs “still in Government service”.
The court, which sits at The Hague, had last month asked for minutes of sensitive meetings, such as those of the National Security Advisory Committee chaired by the Vice-President.
This unusually highly guarded group brings together top security chiefs such as the Chief of General Staff, the Police Commissioner, Director General of National Security Intelligence Service, Internal Security, Defence, Foreign Ministers, and their Permanent Secretaries.
direct interest
From 1- 4: Ocampo, AG Wako, Saitoti and Michuki
The Head of the Civil Service, in this case Francis Muthaura, sits in the council as the President’s representative.
ICC had on August 27 written to Kenya asking for minutes of meetings on deployment of security personnel, and tackling of post-election violence.
This is being seen in Government as attempts to get to the bottom of who gave the shoot-to-kill orders that led to 400 executions largely by regular police, Administration Police, and the General Service Unit.
The Hague expressed direct interest on the security discussions at the Ministry of Internal Security and Provincial Administration, then under John Michuki.
It asked for “all deployment orders for the Rapid Deployment Unit (RDU), and General Service Unit for the same periodÉ”
ICC also asked for minutes of provincial-level meetings chaired by PCs, at which PPOs brief on security matters.
The link ICC appears to be keen on establishing, through the request, is how orders were given, and by who, from the Internal Security and Provincial Administration to field officers in the hotspots, which security personnel turned into killing fields during post-election violence.
It also appears, given the flurry of letters from ICC to the Government, Chief Prosecutor Luis-Moreno Ocampo is determined to get to the bottom of killings that took place in 2008 in the hotspots.
In his letter on behalf of Moreno-Ocampo, Amady Ba, listed the following as places whose security minutes for the period ICC was keen on: Nakuru, Naivasha, Nairobi, Uasin Gishu, Bureti, Migori, Kericho, Homa Bay, Mombasa, Kilifi, Eldoret, Turbo, Kapsabet, and Thika.
Writing on behalf of the Cabinet sub-committee on ICC-related issues chaired by Saitoti, Wako told ICC he would be out of the country until September 29, and asked Ba to, if need be, deal with Saitoti.
In a letter dated August 25, Ba referred to a meeting between Saitoti’s PS, Francis Kimemia and Director of Public Prosecutions Keriako Tobiko with two senior ICC officials.
It is in this letter that while expressing gratitude to Tobiko and Kimemia, Ba talked of ICC’s interest in visiting scenes of crimes, especially in the Rift Valley, for “forensic activities”.
It also talked of determination to work in a “low-key” manner and with the National Cohesion and Integration Commission chaired by Mzalendo Kibunjia.
Legitimate concern
The letters are copied to sub-committee members – Cabinet Ministers James Orengo, Mutula Kilonzo, Otieno Kajwang’, Moses Wetangula, and Wako. The letters are also copied to Kenya’s envoy to The Netherlands Ruthie Chepkoech Rono and Dr Kibunjia.
On the requests for the minutes of security meetings, Wako argued: “This is a legitimate concern related to the national security of Kenya.”
The request came months after Moreno-Ocampo sought approval from the Pre-Trial Chamber II to proceed with investigations into Kenya’s case.
At the time, Moreno-Ocampo asserted Party of National Unity and Orange Democratic Movement’s bigwigs used their personal, Government, business and tribal networks to commit the crimes.
“They implemented their policy with the involvement of a number of State officers and public and private institutions, such as Members of Parliament, senior Government officers, the Police Force, and youth gangs,” Moreno-Ocampo argued.
The prosecutor gave ICC judges a list of the most serious criminal incidents, and a selected list of 20 names of persons who appear to bear the greatest responsibility for these crimes. Both lists are contained in confidential annexes,” the statement read in part.
Some 1,133 people were listed as killed and more than 650,000 displaced from their homes during the violence triggered by dispute over 2007 presidential results.
On the interview with PCs and PPOs, ICC wanted it done in Nairobi and in one day. But since the documents ICC requested were not forthcoming, it opted to cancel a planned visit by its investigators. The investigators were scheduled to start work on September 6.
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