THE advisory panel appointed to advise the government on the ICC may have devised an elaborate plan to rescue the Ocampo Four. It has recommended blocking the use of "state security" material as evidence for the prosecution. The panel says the government can apply Article 72 (4) of the Rome Statute to block production of documents that in its opinion would be prejudicial to national security interests.
In January Attorney General Githu Muigai appointed the panel comprising Geoffrey Nice and Rodney Dixon, the two foreign lawyers who led the legal team in the failed government admissibility challenge last year; Justice (rtd) Benna Lutta; Dr. Godfrey Musila; Lucy Kambuni; Dr. Henry Mutai; Paul Mwangi; Waweru Gatonye; Grace Wakio; and Betty Murungi who also serves as a board member of the ICC trust fund for victims. Joe Okwatch and Fred Ojiambo were appointed to the panel but they did not serve.
The panel was appointed to review the confirmation of charges by the ICC against Deputy Prime Minister Uhuru Kenyatta, former Civil Service chief Francis Muthaura, Eldoret North MP William Ruto, and radio broadcaster Joshua arap Sang. It was also mandated to advise the government on its legal obligations under the Rome Statute following the confirmation.
The panel's report was presented to the AG on Monday. If successful, the security ploy would block briefs from the National Security and Intelligence Service and other security agencies from being used as evidence. Chief Prosecutor Luis Moreno-Ocampo relied heavily on them to make his case and they were cited by the Pre-Trial judges when confirming the charges.
To block their use, the government needs to demonstrate that their use would be injurious to state security. The ICC Pre-Trial Chamber refused to allow the Kenya government to be represented at the hearings but did recognise the importance of pnational security. “It was noted by the chamber that the government had raised no concerns before the hearings about the evidence disclosed between the parties. If the GoK learns of any materials that affects national security interests, this may justify an application by the GoK,” the Pre-Trial Chamber advised.
The advisory panel noted in its report that only "the government and its competent national agencies has a right to determine its own national security interests.”The panel said the government would have to establish a clear basis on which security interests would be compromised if Kenyan security briefs were used as evidence by the court. "The government should be aware that upon application, the court could take the view that such a right does not extend to information disclosed or made available to the court by the government,” the panel cautioned.
The panel said that the ICC process could possibly be avoided if government appointed an independent special prosecutor to try all post election violence suspects including the Ocampo Four. "The investigation and prosecution must however be characterized by genuine ability, willingness and intent and speed on the part of all involved," the report said. The panel said that if the government wants to bring a second admissibility challenge after appointing the special prosecutor, it would have to demonstrate exceptional circumstances to justify such an application.
The panel also looked at a possible new angle for an admissibility challenge. “If an argument is made successfully by the accused that crimes for which they are charged are not ICC crimes, the ICC automatically loses its ‘supervisory’ role over national courts (entailed in complementarity) and it is unnecessary to prove to the court that the crimes will be prosecuted at a future date as Penal Code offences,” the panel stated. The panel advised the government that it can again challenge the jurisdiction of the court and can decline to provide assistance.