The Star (Nairobi)

8 March 2014

Kenya: Mystery of Mutunga, Bensouda Meeting

CHIEF Justice Willy Mutunga may have privately met ICC Chief Prosecutor Fatou Bensouda last week. Mutunga traveled alone last week for a meeting at the Hague where the court is based. The legal meeting was apparently an association that Mutunga has been attending from long before he became president.

Bensouda and Mutunga were apparently seen together in the lobby of a hotel in the Hague where the International Criminal Court is based. It is not clear whether the two simply bumped into each other or whether it was a scheduled meeting. It is not unusual for Mutunga to travel out of Kenya alone even though he is Chief Justice. Last month he went to South Africa on his own.

"So what even if they met? The CJ meets so many people. He has previously met the prosecutor when she paid a courtesy call on him in his office," said the CJ's spokesmn Kwamchetsi Makokha yesterday.

He accused those making a big deal out of the alleged meeting of having ulterior motives. "I do not keep tabs on the people the CJ meets. He may have met her or he may not have met her. I do not know," he said.

There are two matters that Bensouda and Mutunga could discuss if they in fact met on purpose.

The first is the ongoing effort to set up an International Crimes Division of the High Court in Kenya. The second is Bensouda's continuing complaints that the government of Kenya is refusing to cooperate with her.

Mutunga chairs the Judicial Service Commission which is setting up the ICD but the process appears to have lost steam in the recent months.

Civil society groups, the Director of Public Prosecutions and the JSC itself have clashed several times on the structure of the proposed court and its mandate.

The DPP's recently dampened prospects for the ICD when he said that none of the 4,000 post election violence file is prosecutable.

The JSC sub-committee on the ICD has previously visited the ICC in the Hague on a comparative study tour. The ICD is supposed to deal with middle and lower level perpetrators of international crimes committed in Kenya.

The court was to have seven judges and also have jurisdiction on transnational crimes like money laundering, cyber laundering, human trafficking, piracy and transnational organized crime.

Bensouda and Mutunga last met in October 2012 in the CJ's office in Supreme Court buildings in Nairobi. She was accompanied by the ICC head of jurisdiction Phakiso Mochochoko and his deputy Shamizo Mbizvo.

Mutunga refused to meet them alone complaining of pressure he had come under for meeting foreign dignitaries alone including former US secretary of state Hilary Clinton.

He met Beousad with JSC members Florence Mwangangi, Rev Samuel Kobia, Deputy Solicitor General Muthoni Kimani and Chief Registrar Gladys Shollei.

The meeting discussed Kenya's judicial role in complementarity. Bensouda was shocked to learn that her persistent requests for certain files from the judiciary had never been forwarded to Mutunga by the Attorney General.

Bensouda is presently trying to obtaining a finding that Kenya has failed to cooperate with her investigations. According to the Rome Statute, the non-cooperative state may be referred to the Assembly of State Parties or the UN Security Council.

The judges will soon make a final determination on the matter as well as rule on the fate of President Uhuru Kenyatta's case.

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