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AG should focus on ‘positive complementarity’ and stop Blaming the ICC Prosecutor for Failure of Local Prosecutions

Sunday June 3rd, 2012

1.        The Hon. Attorney General, Prof. Githu Muigai   made a statement while addressing a witness protection forum to the effect that the Office of the Prosecutor of the ICC had so far failed to disclose identity of his witnesses to the AG’s office. Apparently, the AG was trying to indicate that this ‘failure’ is jeopardizing his efforts to guarantee protection for witnesses and potential witnesses in relation to post-election violence (PEV).

2.         It is a horrible irony that the Attorney General of the Republic appointed under the Constitution of Kenya, 2010 should be the face that the purveyors of impunity find comfort and energy in.   Part of the constitutional mandate of the Attorney-General shall be  to promote, protect and uphold the rule of law and defend the public interest.

3.         ICPC, as an institution working closely to ensure fairness and justice at this transitional period in the country’s history, takes great exception to these irresponsible and untrue comments coming from no less than the AG.

4.         We consider this position taken by the AG to be at best a continuation of the now perfected tendency by the AG to mislead the public and antagonize them against the ICC, which remains the only realistic hope for justice for the victims of the PEV, while procrastinating over possibilities of a local mechanism/tribunal for trying perpetrators.

5.         It should be recalled that it’s now over 4 years since the crimes related to PEV were committed and it cannot be legally and factually right to blame lack of local prosecutions on an international process. In any case, it’s common knowledge to the Kenyan people that the ICC prosecutor considerably relied on evidence gathered by public institutions in Kenya for his initial investigations. These institutions are at the disposal of the AG  and DPP  and some of their reports are public.

6.         It is also improper for the AG to deliberately mislead the public on the legal position as the Rome Statute does not anticipate sharing information with an entity which is not party to its proceedings. The Kenyan state is not a party at this stage to the ICC proceedings and is therefore, not entitled to disclosure.  This can only be done to the defence teams of the ‘Ocampo 4’ and not the Kenyan government.  In this new era of transparency and honesty under the new constitutional dispensation, the AG cannot deliberately feign ignorance of this fact as Kenya’s obligations as a party under present ICC proceedings ended when the ‘admissibility challenge’ collapsed. AG has no role in criminal proceedings.

7.         In our view, we construe these maneuvers by the AG as being in line with the unconcealed government’s policy to frustrate justice for the PEV victims by engaging in insidious justice sabotage missions instead of taking concrete steps to initiate a local mechanism to address crimes committed during the PEV. It is a manifestation of the fact that the problem in Kenya is not that of lack of capacity or evidence to prosecute but rather absence of a determination and will to confront impunity. As a person hired under the new dispensation, Prof. Githu must show paradigm shift in dealing with PEV cases and stop reinforcing impunity.

8.         We note, for instance, with concern that the AG and DPP  has so far failed to even initiate steps toward adopting ‘positive complementarity’ by cooperating with the Office of Prosecutor to try other cadres of perpetrators locally. This is a legally –tenable alternative under the Rome Statute and would undoubtedly send a strong message of an internal desire to try even the ‘Ocampo 4’. Instead, the AG focuses on issues of witness identity that is not within his remit.

9.         Lest we forget, the AG is well aware that the Witness Protection Agency in Kenya lacks sufficient capacity to offer adequate protection and that certain government functionaries within his office have tried to interfere with its independence. We all know how important witnesses and whistle-blowers have been treated in Kenya.  No investigations have been done to date.

10.       Finally, we urge the AG to respect the wishes of the victims of PEV and let the course of justice to flow. It is inappropriate for his office to appear to use its public platform to mislead over the steps the government is allegedly taking knowing very well that they have consistently failed to establish a local tribunal. Even resettlement of IDPs and reconciliation has been neglected. In these circumstances, even if Kenya as a state party to the ICC were legally entitled to know the identity of the witnesses it would not be advisable for the ICC prosecutor to disclose them to the AG. 



Ndung’u Wainaina

Executive Director,

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