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"content": "Mr. Speaker, Sir, on Tuesday 28th September, 2010, hon. Mungatana, Member for Garsen, rose on a point of order seeking a Ministerial Statement on the commitment of the Government to the ICC. In the Statement the hon. Member sought to know whether:- (i) the Government is committed to fully co-operate with the ICC on the investigation of the post-election violence; (ii) the Government has afforded the ICC all the facilities they require to carry out their mandate; (iii)the Government has failed to give information and necessary minutes of security meetings that were held during and after the post-election violence; (iv) with the passing of the new Constitution, the Government will still co-operate with the ICC or it has changed its position; and, (v) the Minister could table the agreement between the Government and the ICC. Mr. Speaker, Sir, I wish to state as follows: It is on record that Kenya held the national General Elections on 27th December, 2007. Upon the announcement of the Presidential election results, violence erupted in five provinces and continued in some areas until after the signing of the National Accord Agreement on 20th February, 2008 by the two Principals. After calm was restored, His Excellency the President constituted the Commission of Inquiry into the post-election violence, popularly known as the Waki Commission. The Commission made a Report and presented it to His Excellency the President and the Panel of Eminent African Personalities in October, 2008. Mr. Speaker, Sir, among the recommendations made by the Waki Commission is the constitution of the special tribunal for Kenya. In the event that the special tribal fails to be established or commence functioning or if started, the functioning was subverted, then the special Prosecutor of the ICC would proceed with an investigation; prosecuting the persons suspected to bear the greatest responsibility for crimes falling within the jurisdiction of the proposed Special Tribunal. The National Assembly was unable, on repeated occasions, to enact legislation to establish the Special Tribunal, thus bringing into play the special prosecutor of the ICC, as prescribed by the Waki Report in Chapter 13, Recommendation No.5, page 476. Consequently, on 31st March, 2010, the pre-trial Chamber authorized the Office of the Prosecutor of the ICC to conduct investigations in Kenya. Mr. Speaker, Sir, the ICC has since made several requests for assistance and co- operation from the Government. These requests range from provisions of the various documents and records, the taking and recording of evidence from various Government of Kenya officials, the production of certain security documents and minutes and security service to ICC officials while in the country. In particular, by their letter or request dated 15th July, 2010, the ICC requested the provisions of minutes of certain security committee meetings. Upon receipt, the Government sought for clarification from the ICC and requested them to be specific on which minutes or information they required. The seeking of clarification is provided for under Section 24 of the International Crimes Act No.16 of 2008. The ICC responded to the Attorney-Generalâs letter on 24th September, 2010, and specified the documents they sought to be transmitted to them. The Government has since initiated the retrieval of minutes for the period in question and perused them in order to identify the relevant minutes, pursuant to Article 72 of the Rome Statute. The exercise is ongoing. On the request for the interview of the named Provincial Commissioners and Provincial Police Officers, I wish to confirm that the Government, through the Cabinet Sub-committee coordinating the ICC matters, pursuant to provisions of Section 23 of the International Crimes Act, authorized the interview to proceed and the identified officers were instructed to attend. Mr. Speaker, Sir, I would however, try to point out that persons appearing to give evidence, produce documents or to be questioned by the ICC have rights and privileges both under the International Crimes Act and the Rome Statutes, including the ICC Rules which provide, among others, protection against self incrimination, legal representation and non-disclosure of information that may jeopardize national security. The rights are provided for under Section 152 to Section 155 of the International Crimes Act and Article 72 and Article 93 of the Rome Statute. The rights are also enshrined in the Constitution of Kenya. Following the submission by the officers who appeared for interviews by the ICC investigators on Monday 27th and 29th September 2010, the Attorney-General wrote, pursuant to Section 78 of the International Crimes Act, to the Chief Justice and requested him to appoint a judge of the High Court to take evidence from the identified Government officials. The hon. Chief Justice has since appointed Lady Justice Kalpana H. Rawal for that purpose. Mr. Speaker, Sir, further, in the discharge of my mandate, and in conjunction with the Cabinet Sub-committee coordinating the ICC matters, I am in the process of finalizing drawing of rules, pursuant to Section 172(b) of the International Crimes Act, to provide for the envisaged procedure. At this juncture, I can report that I expect the necessary gazettement will have been finalized to appear this coming Friday, the 22nd October 2010. Mr. Speaker, Sir, on 3rd October 2010, an exchange of letters on the privileges and immunities of the ICC was executed and delivered. The same has since been gazetted. These include the agreement necessary for the independence and effective functioning of the ICC in the country, in accordance with the Kenyaâs obligation under the international law. I wish to once again assure the House that the passing of the new Constitution does not in any way change the Governmentâs term on its legal obligation to cooperate with the ICC. Indeed, under Article 2 of Sub-articles 5 and 6 of the new Constitution, the general rules of the International laws and Treaties or Conventions ratified by Kenya form part of Kenyaâs law. Mr. Speaker, Sir, Kenya is one of the very few African countries that have enacted international crime legislation to give effect to the Rome Statute. We have facilitated the smooth process, which is a pre-requisite for cooperation and fosters Kenyaâs better cooperation with the ICC. Indeed, as late as 11th October 2010, the ICC took the opportunity to thank the Kenya Government for its cooperation with its investigation. Finally, I wish to assure this House and Kenyans in general that the Government is committed to cooperation with the ICC in the ongoing investigation to the full extent as by law required. I hereby table the agreement between the Government and the ICC on the privileges of the ICC."
}