THE International Criminal Court has committed itself to share information to aid Kenya's fresh investigations into the 2007-08 post-election violence. But this will not affect the charges against the Ocampo Six who have already been indicted at the Hague.
Phakiso Mochochoko, head of the visiting delegation from the Office of the Prosecutor, yesterday held a meeting in Nairobi with the Cabinet Sub-Committee on the ICC.
Moments after that meeting he told the Star he would not share any evidence touching on the Ocampo Six suspects because the matter is already with the court.
He spoke as AG Amos Wako said Kenya would appeal the decision by the ICC to dismiss its admissibility challenge. "I am surprised that the Pre-Trial Chamber II reached this decision without according, at the very minimum, on oral hearing to the Government of Kenya," Wako said in a statement. "This issue, of giving an opportunity to the state Party which has applied for it an oral hearing, is fundamental to the development of international criminal law. The Government of Kenya is therefore reviewing the ruling with a view to appealing against both decisions to the Appeals Chamber of the ICC."
Wako said he plans to meet Kenya's lawyers, Sir Geoffrey Nice and Rodney Dixon, in London on Friday to discuss the appeal. Mochochoko said the two cases are rightly within the ICC jurisdiction and the court can only expect cooperation from the suspects. “Matters to do with the six are already with the court and yesterday’s ruling affirms that. We can only cooperate on other investigations touching on other people and at the same time expect cooperation in our investigations,” he said.
He said the cooperation the court will offer Kenya is subject to certain conditions, key among them an adequate protection programme for the witnesses whom Kenya intends to use in its own prosecutions.
Mochochoko said his office’s concerns for the witness protection programme is purely in the interest of the Kenyan government because ICC has no witnesses in Kenya at the moment:
“All our witnesses are out there and we have got our own witness protection mechanism. We are not using the Kenyan witness protection mechanism to protect our own witnesses. However, in our sharing of information with the Kenyan government, we have to be sure there is a mechanism for protection of the Kenyan government witnesses because this is the standard of the court,” he said.
He said ICC’s concern expressed before and even now is that even its own witnesses who are not in the country could be threatened from Kenya and that is why he wants the government’s assurance on the matter.
Mochochoko is accompanied by associate situation analyst Claus Molitor and associate international cooperation adviser Shamiso Mbizvo.
He said the Cabinet Sub-Committee on ICC — which includes ministers James Orengo, Mutula Kilonzo, George Saitoti and Amason Kingi — assured him of renewed cooperation with the ICC.
The meeting was also attended by Internal Security PS Francis Kimemia and head of National Security Intelligence Service Michael Gichangi
The government explained at the meeting that witness protection had stalled owing to inadequate funding but this would be addressed in the coming days.
Mochochoko said the ministers did not tell his delegation how much money they intend to allocate the programme in the coming budget or how they intend to address the problem.
“They have reiterated their commitment to cooperate with the court. We can only go by their word for now but I must say this will be tested in the coming days once we submit specific requests to them because we intend to do so in the coming days,” he said.
He said in case of lack of cooperation, the office of the prosecutor would use the avenues in the Rome Statute which include reporting to the judges about it.
Mochochoko said ICC will not cooperate in Kenya's fresh investigations until it receives the specifics of the cases being investigated. So far, there are no specifics on the table of ICC.
He dismissed the impression created by the spate of losses during the disclosure contestation that Ocampo might be having a weak case: “We believe in our evidence and we understand this is going to be a long legal battle. We intend to win it and secure justice for all.”
Mochochoko dismissed the idea of the government appeal over the admissibility challenge, saying Kenya is unlikely to succeed because there has been no circumstantial change so far.
“The circumstances remain as they were at the time of making the ruling. I do not expect them to change in an instant. And so we do not expect this to go any far but the government is right within the law to do so,” he said.
He said his office is ready to go the whole hog in case the government decides to appeal. He said his team, which leaves the country tomorrow, will not meet the two principals, President Kibaki and Prime Minister Raila Odinga.
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