What Bensouda asked Kibaki, Raila

By Peter Opiyo and Cyrus Ombati

International Criminal Court Prosecutor Fatou Bensouda has sought assurances from President Kibaki and Prime Minister Raila Odinga that Kenya will co-operate with The Hague-based Court.

She also raised concerns over protection of witnesses and pushed for the release by the Government of confidential security information relevant to the two Kenya cases.

“She met various teams involved in the two ICC cases and those handling post-election violence cases for a briefing in the presence of the two principals,” said a Government official who attended the meeting, but asked not to be named.

Bensouda was briefed on the operations of the Witness Protection Agency and what it is doing to protect witnesses by the director Alice Ondiek.

She also had frank discussions with the Cabinet Sub-Committee on ICC during which she stressed the need for the Government to co-operate with her office.

The Sub-Committee includes Commissioner of Police Mathew Iteere and Director General of the National Intelligence Service, Michael Gichangi who attended.

On Monday, the Prosecutor had said she was seeking confidential information from the Government.

 “We are working to resolve delays in the execution of our request by the Government of Kenya,” said the Prosecutor.

“I am hoping to get this information. I do hope we will get the information we are looking for,” added Bensouda.

Last December, ICC detectives failed to get critical statements from provincial commissioners, and senior police officers who served in the hotspots during the 2008 post-election violence.

The PCs were Hassan Noor, Ernest Munyi, James Waweru, Paul Olando, and Japhter Rugut.  The officials, through their lawyers Evans Monari and Ken Ogeto refused to answer questions from the ICC expressing fears their statements could be used against them at The Hague. This was despite assurances by Justice Lady Kalpana Rawal, who was appointed to preside over statement taking.

However, the official statement from President Kibaki’s office gave few details of what was discussed at Harambee House.

“Ms Bensouda said her main reason for visiting the country was to enhance co-operation between Kenya and the ICC,” said the terse statement from the Presidential Press Service.

Although the Director of Public Prosecutions, Keriako Tobiko remained silent over the meeting, it emerged that he was also asked about the stalled post-election violence cases in local courts.

A committee chaired by Dorcas Oduor, a Deputy Director of Public Prosecutions, recently told Kenyans that out of the over 5,000 post-election violence cases taken to court, only 1,500 could be prosecuted.

Previously, the Government held onto the minutes of the National Security Council meetings during the height of the violence. The ICC later obtained copies of the minutes.

There has also been a tug-of-war between the ICC and the Government over evidence from security officers on the violence. A quasi-judicial team headed by Justice Rawal was formed to gather evidence on the violence from police chiefs, but it flopped after a court injunction prevented the officers from giving evidence.

The intimidation of witnesses has been a concern for the court and Bensouda on Monday said they are taking the matter seriously.

“We do have information and we are verifying this information and we are concerned witnesses are being interfered with. So we are taking this seriously,” the ICC Prosecutor said on Monday.

Interference with witnesses is a crime under the Rome Statute, Article 70, and attracts a jail term of five years.

Recently, the Office of the Prosecutor sought the ICC’s permission to meet with the witnesses and assure them of their safety and jog their memories ahead of the April trials, following threats to their lives.

Bensouda told Kibaki and Raila that ICC is only concerned with the four Kenyans accused of having the greatest responsibility over international crimes.

?“She stressed that she is not against the Kenya Government or any ethnic community, adding that the ICC will not interfere with the ongoing political processes,” said the PPS statement.

Two of the accused, Deputy Prime Minister Uhuru Kenya and Eldoret North MP, William Ruto, have politicised the ICC process and portrayed it as an ethnic-based issue.

At the Harambee House meeting, Bensouda said the ICC would carry out its work guided by the principles of impartiality and independence in the pursuit of justice.

She also thanked the Government for supporting her candidature as ICC Prosecutor and for the warm reception extended to her since her arrival on Monday.

President Kibaki avoided the ICC matter, only saying how prepared the country is to conduct peaceful elections on March 4.

“The President said that the Government is committed to ensuring free, fair, and peaceful elections next year,” the statement said.

Cabinet ministers Eugene Wamalwa (Justice), Katoo ole Metito (Internal Security), Attorney General Githu Muigai, and acting Head of Public Service, Francis Kimemia, were present.

The Permanent Secretary in the Prime Minister’s Office Mohamed Isahakia, Internal Security PS, Mutea Iringo, and Director of Public Prosecutions, Keriako Tobiko, also attended the meeting.

The Cabinet Sub-Committee members included Cabinet ministers James Orengo (Lands), Mutula Kilonzo (Education), Amason Kingi (Fisheries), and Sam Ongeri (Foreign Affairs).