Political activist David Matsanga with Kalenjin council of elders lawyer William Arusei sharing a joke outside a courtroom at Milimani law court after the elders made an application to be enjoined as the interested party in a suit Matsanga is seeking high to compel justice Waki secret envelope be made public on Friday 10 July,2015.


Kalenjin council of elders have moved to court seeking to be enjoined in a case filed to by an activist to compel Justice Philip Waki to reveal the contents of the secret envelope have urged the court to allow them to participate.

Matssanga through his lawyer Ngaruiya waithaka moved to court seeking high court to compel the appellate court judge, Justice Philip Waki report on the 2007/2008 post-election violence report made public.

The elders, under the umbrella of Myot Welfare Association, want to be enjoined as interested parties, in the case that was filed by activist David Matsanga.

Through lawyer William Arusei, the elders on Wednesday  told Mr Justice Isaac Lenaola that the Waki report condemned the community without giving it a chance to be heard, hence their interest in the case.

The report the lawyer said, made various assertions against the community which have the effect of belittling, defaming and prejudicing the entire community.

The office of International Criminal Court Prosecutor Fatou B. Bensouda has replied to the High Court of Kenya request to participate in court proceedings filed by Ugandan Scholar David Nyekorach Matsanga through his lawyer Ngaruiya waithaka seeking to have the contents of the Waki envelope made public.
“Kenya High Court has no jurisdiction over my office or ICC as a whole” said Bensouda in her letter.
Bensouda through her letter to Kenya Ambassador to Netherlands Ms Rose Makena Muchiri says her office won’t and will not participate on High Court proceeding’s as requested through Chief Justice Willy Mutunga.
“My office won’t will not participating in High Court of Kenya proceedings” Bensouda says in her letter.
Bensouda used Emissary tactic to respond to the High court request under what is viewed as a way of avoiding to respond to the court directly that requested her office to participate to the proceedings.
The prosecutor claims that the office of the prosecutor enjoys immunity under both International and Kenyan law privileges and immunity.
“Immunity from legal process is similarly accorded to the court’s official and staff under Article 48 of Rome Statute and Article 9 A of the Kenya privileges and immunity Act”. Say Bensouda.
David Nyekorach Matsanga through his petition, he sought High court to issue an injunction to direct or compel the office of prosecutor of International court to take certain measures on the matter.

“The community was adversely mentioned in the report by the Commission of Inquiry into Post-Election Violence (CIPEV) which was chaired by Justice Philip Waki but their response, which is a requirement in law, was not sought before the report was published,” said lawyer Arusei.

He said the community should have been allowed to defend itself against the allegations made. According to the elders, unless the allegations are challenged, the past, present and future generations of the Kalenjin nation will suffer prejudice in Kenya and elsewhere.

The request has however been opposed by Attorney General through senior state counsel Njoroge Mwangi who said that the elders have not demonstrated the different contribution they will bring into the case which will not be addressed by the parties already in the case.

The court was also told that allowing the welfare association to participate will amount to duplication given that some of the issues they seek to raise, already form the substance of the case.

Mr Matsanga filed a petition to compel the government and the International Criminal Court to make public the contents of the Waki Report. He said that he has filed a case at The Hague-based court and needs the report to advance it.

The Waki report was presented to President Mwai Kibaki and Prime Minister Raila Odinga in October 2008.

The commission then gave an envelope containing the names of alleged perpetrators of the violence to Mr Kofi Annan, who brokered a power-sharing agreement between Mr Kibaki and Mr Odinga.

The names were finally handed over to Luis Moreno-Ocampo in early 2009, the then chief prosecutor at the ICC, after Parliament rejected an amendment Bill for a special tribunal to try the suspects.

A ruling will be delivered on October 30.