International Criminal Court team has neither been given minutes of high-level security meetings during post-election violence nor interviewed Provincial Commissioners and regional police chiefs.
But even before the face-to-face with ICC investigators tracking the givers of the shoot-to-kill orders that claimed 400 lives, the PCs and PPOs have hired lawyers, ostensibly to avoid incriminating themselves or to sit through the sessions as their witnesses.
The ICC team, which is in the country trying to tie the loose ends on its upcoming cases against those deemed to hold higher
responsibility for the killings, has also not been given the internal regulations of the Administration Police unit as requested since August.
Instead, as the Government appeared to drag its feet on satisfying ICC request while pledging unrelenting co-operation for its probe on Kenya, news leaked Attorney General Amos Wako and National Security Intelligence Agency now have a new brief to vet the minutes to be passed on to ICC.
The filtering process appears to defy ICC’s initial request for minutes of meetings that took place at the national and provincial levels between December 2007 and February 2008, and even the one for the revised specified dates ICC submitted last week.
According to the script of the two-step approach the Government is following, Wako and NSIS Director General Michael Gichangi, who sits in the National Security Advisory Council meetings whose minutes ICC also wants to see, will sift through the minutes and select those to be given to ICC, but through the Cabinet sub-committee.
The committee chaired by Internal Security Minister George Saitoti will in turn vet the documents further, ostensibly to ensure what goes to ICC does not compromise national security as Wako recommended. The AG not only sits in the committee, but is also the Government’s legal advisor. Gichangi heads the agency that is the guardian and custodian of the country’s national security through an elaborate network of spies and spy-ware. Prof Saitoti has also categorically stated the Government would have to vet some of the minutes before they are handed over to the investigators.
"We are compiling the necessary minutes as they are many and we shall give ICC the relevant ones," he said, confirming the filtering option the State has settled on.
security memos
The State has directed Attorney General Amos Wako and NSIS Director General Michael Gichangi to sift through the minutes of security meetings and select those to be given to ICC detectives. [PHOTO: FILE/STANDARD]
The Standard separately confirmed Wako and Gichangi were mandated with the responsibility of going through all security memos, and reports that were used during post-election violence.
"We were clear on the matter of Government documents pertaining to the probe, that procedures as stipulated in the International Crimes Act must be followed when it comes to issues of national security," added our sources who are familiar with what transpired at the Cabinet sub-committee meeting on Tuesday.
Wako and Gichangi will decide what is relevant and what is not, and then submit the same to the Cabinet sub-committee, which will scrutinise the reports and decide whether the evidence should be given to the investigators.
Saitoti chaired the meeting of the sub-committee, which was set up after the minister requested Cabinet for an-all inclusive team to deal with ICC. He deemed the issue a hot potato and did not want to be accused by others of ‘betraying’ them by virtue of his office if and when trials start.
The Hague team was supposed to begin meeting the police chiefs and PCs on Monday, even though Wako had written to ICC that Kenya would only facilitate its interviews with serving officers – and not those who had left the service.
The officers reportedly hired lawyers over fears they could give away incriminating evidence against themselves or be sacrificed by their superiors if seen to have talked behind their backs. They are insisting they would only be interviewed in the presence of lawyers with the status of a judge or the Registrar of the High Court, as recommended by the Rome Statute.
Curiously, Saitoti said it was up to individual members of the provincial security teams to offer themselves for interrogation by ICC investigators. "The PCs, PPOs, and senior Government officials who were on duty during and after post-election violence are aware of their constitutional rights," argued Saitoti.
Four lawyers who will guide them through the process of giving evidence before the six ICC investigators, who are in the country, will represent the officers. The Standard established the PPOs and PCs have in their individual capacity engaged lawyers Evans Monari, Ahmednasir Abdullahi, Ken Ogeto, and Gershom Ottachi.
Mr Monari and Mr Ogeto confirmed they had been engaged by the officers but in their individual capacities. The two could not give further details.
The Government has been sending out mixed signals over its co-operation with ICC after Chief Prosecutor Luis-Moreno Ocampo indicated he would be prosecuting at least six people by December in two separate cases. Lands Minister James Orengo last week wrote to Cabinet colleagues in the sub-committee to ensure the country fully co-operates with ICC. "It is in public interest to assist the ICC deal with the crimes within its jurisdiction committed in the territory of Kenya," wrote Orengo.
designated judge
He advised if there was any reason to deny them the reports, then the sub-committee should be allowed to scrutinise them before such an action is taken. "We should release all the relevant information to the court that we consider relevant to its investigations, even without a request being made because we are obligated to do so," he argued.
Former and current PPOs and PCs who are were in charge of various stations during the 2007 post-election violence are said to be ready to give evidence ICC so long as their evidence shall taken in writing and on the oath of or affirmation or witness by a judge of the High Court.
"These are the procedures and the ICC team has no issues and we are not in conflict because that is what the law says," added our sources. In the event designated judge takes evidence of those the ICC team wanted interrogated it would have to be certified by the judge then sent to the AG. From the AG, it will have to be produced as taken before the ICC. The judges may later be required to appear before the ICC if prosecutions kick off.
Sources told The Standard the lawyers have written to Wako promising co-operation provided the provisions of ICC Act were respected. The lawyers later met the six ICC officers in Kenya and informed them their clients are willing to give evidence but only on this condition.
The Standard was also informed the ICC officials were not keen on going through the rigours of engaging a judge of a High Court and instead suggested that evidence can be taken through provisions of Article 99 (4), which allows interviews of or taking evidence from a person on a voluntary basis, without the presence of the authorities of the requested State party.
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