ICC Chief Prosecutor Fatou Bensouda visit to Kenya to secure evidence is unlikely to be successful. It has now emerged that government discreetly created a loophole two years ago to allow Kenyan officials not to testify or provide documents to the ICC.
Legal Notice No 177 on the International Crimes Act was signed by the late Internal Security minister George Saitoti on October 19, 2010.
The notice allows government officials to refuse to answer questions on the basis of national security or if it might lead to his or her prosecution.
"A witness may decline to answer any questions if, in his or her opinion, the answer may incriminate him or her or compromise national security," states clause 10 (2) of the legal notice.
The legal amendment is entitled the International Crimes ( Procedures for Obtaining Evidence) Rules 2010. It provides the rules where International Criminal Court has requested evidence, testimony or documents from the Attorney General.
Once that request is received, the AG is supposed to contact the Chief Justice to provide a judge who will preside over the collection of evidence requested by the ICC.
The court can sit in open or closed session but with video and a stenographer at all times. In early 2011, five PCs and four PPOs refused to give their statements on post-election violence before Justice Kaplana Rawal, appointed by then Attorney General Amos Wako.
With hindsight, it is clear they were protected by clause 10 (2). Bensouda last Tuesday met President Mwai Kibaki, Prime Minister Raila Odinga and the ICC sub committee on ICC matters and complained that government had failed to provide crucial evidence to the ICC.
Bensouda took over from Luis Moreno Ocampo as ICC Chief Prosecutor in April. The Star has established that, among others, she requested: post-mortem reports of victims who died in Naivasha, Eldoret and the Kiambaa church attacks; records of police officers who served in areas hit by post-election violence; and minutes of provincial and national security meetings held before and after the December 2007 elections. She has also requested for the regular intelligence reports of the National Security Intelligence Service for the period.
Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, former Public Service chief Francis Muthaura and broadcaster Joshua arap Sang face crimes against humanity charges at the Hague. Their cases start on April 10 and 11, 2013.
Clause 10 (2) of the legal notice will protect Provincial Commissioners and Provincial Police Chiefs who have been accused of participating in post election violence.
Clause 10 (5) provides another escape route by stating "A witness may, at any stage of the proceedings, indicate that he is unable to answer a question sufficiently for lack of sufficient particulars."
Bensouda will also not be getting some records she has requested. The police have destroyed records such as P3 forms and medical reports relating to the post election chaos.
The Police Force standing orders cap 41 mandates the police to destroy such documents after the "expiry of their shelf life". According to Cap 41 on evidence, documents such as a duty roster should be destroyed after two years.
Medical reports such as P3 forms are destroyed after one year while inquiry registers are destroyed after five years. According to police sources, Bensouda wanted to corroborate her evidence against Uhuru, Ruto, Muthaura and arap Sang.
There have been disagreements between the ICC and the government after Kenya declined to provide the information demanded by local investigators.
The government wanted the ICC to make full disclosure and specify exactly what information they were seeking. ICC is yet to furnish the office of the Attorney General with a request of the exact information that they are need, according to government sources.
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