The International Criminal Court (ICC) Prosecutor Mrs Fatou Bensouda will be in Kenya from 22-26 October, 2012. Reports from the Office of the Prosecutor (OTP) state that the purpose of Mrs. Bensouda and her team’s trip to Kenya will primarily be to visit victims of the post-election violence as well as to obtain crucial information that would support the prosecution’s cases against four Kenyans whose trials will commence at the ICC next year in April.
A few weeks ago, the Head of Jurisdiction, Complementarity and Cooperation at the OTP Mr Phakiso Mochochoko, wrote to Kenya’s Attorney General (AG) Prof Githu Muigai expressing disappointment for a lack of effective cooperation by Kenya with the OTP. The OTP has been seeking Kenya’s cooperation in obtaining information from different government agencies. Kenya is obligated under Article 86 of the Rome Statute to cooperate with the ICC. The AG blamed the delay in cooperating with the OTP on the failure of certain government agencies who possess the required information to quickly respond to the OTP’s request. The AG has reiterated that Kenya remains committed to her obligations under the Rome Statute. Prof Muigai has also praised Mrs Bensouda’s better approach to her mandate and relations with States Parties to the Rome Statute that created the ICC than her predecessor Mr Louis Moreno-Ocampo. However as Chief Legal Advisor to the government of Kenya, it is his responsibility to ensure that Kenya abides by its international commitments.
It is clear in the past few months that Mrs. Bensouda has been in office as Chief Prosecutor that she has a different leadership style to her predecessor who was shrouded with controversy over his sometimes boisterous approach to his mandate. With such a start to her mandate, the Fatou Effect as I have called it elsewhere is bound to have a more persuasive, endearing and results-oriented function about the OTP. This is a good thing and necessitates cordial relationships between the ICC situation countries and the OTP. Often the first or more prominent organ in the interface between a situation country and the ICC, it is important that the OTP establishes and maintains the right approach to prosecutions and investigations and Fatou has clearly understood this.
For Kenya, a visit form the ICC Chief Prosecutor can be used to mend fences where the relationship between government and the ICC was strained following Ocampo’s initiation of investigations in the country. We should not however forget that Fatou was the Deputy Prosecutor at the time when the ICC Pre-Trial Chamber authorized OTP’s investigations into Kenya, and it is unlikely that her sentiments on the prosecutions and investigations in Kenya have changed since her taking office as Chief Prosecutor. Rather the Fatou we see now, is seasoned with the experiences – both failings and successes of the OTP over the past 10 years of its operations, which no doubt inform the prosecutorial strategy for the Kenya cases.
Cooperation by States Parties with the ICC can be a two-way street. Within the ambit of positive complementarity – a concept that solidified its footing at the Kampala Review Conference of the ICC’s founding treaty in 2010 – Kenya can request for the support of the ICC in effectively investigating and prosecuting individuals suspected of committing crimes related to the post-election violence. We are certainly not referring to local prosecution for the four Kenyans whose trials are scheduled to start in April 2013, but rather the many other perpetrators of crimes following the 2007 elections in Kenya. The OTP is on record stating that although it will not provide financial support to States that ask for support under the positive complementarity principle, it can provide technical and logistical assistance. Kenya can benefit from the visit by the OTP to request for such assistance. It is important in this transition that Kenya deals with its past and that the many victims of the crimes committed following the 2007 elections are redressed.
In August 2012, a task force set up by Kenya’s Director of Public Prosecutions (DPP) Mr Keriako Tobiko to look into the thousands of files at the DPP’s office relating to the PEV released an interim report with findings that many of the files may have to be closed because evidence that would be necessary to adduce before court for convictions is non-existent. This means that many victims of the PEV will not receive the justice that they have sought for the past five years. There still remain opportunities for meaningful cooperation that would benefit both Kenya and the OTP on matters relating to prosecutions and investigations in Kenya. It will take the concerted efforts of the relevant Kenyan authorities to bring this about.