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Ugandan scholar David Matsanga and lawyer Waithaka Ngaruiya outside Milimani law courts building after filing a case seeking to compel ICC Prosecutor Fatou Bensuada,Attorney and Attorney General to publish and publicize the names in Waki secret envelope.
Appellate Court judge Philip Waki has filed a preliminary objection to the application by activists David Matsanga and John Kimani to have the contents of the Waki envelope made public.
Waki instead wants the High Court to throw out the petition arguing that it is “bad in law,” and “the petitioners do not have a right to the
reliefs sought.”
He argues that Matsanga for instance, is not a Kenyan citizen and “cannot therefore bring the
instant petition within the provisions of Article 35.”
He also argues that there is already a similar petition before the Mombasa High Court filed by Kepha Mwebi against him and others.
Even so, he continues to argue, he cannot be personally compelled as the Chairman of the Commission of Inquiry into the Post Election Violence of 2008 (CIPEV) to divulge the findings.
“No civil action or suit can lie against the first respondent (Waki) by virtue of Section 14 of the Commissions of Inquiries Act.”
The findings of which were presented to President Mwai Kibaki, he submitted, and were therefore now the property of the State.
CIPEV itself, he added, could not be sued as it was disbanded in 2008 as soon as its work
was done.
“The report by the commission was submitted on October 15, 2008 before the promulgation of the new Constitution 2010 which cannot apply retrospectively,” Waki submitted through lawyer
George Oraro.
He also challenged the reasons given by the two for their application saying they had not provided proof of their submission that Matsanga had challenged the decision of the International Criminal Court (ICC) to adopt of the Waki report in the case facing Deputy President William Ruto and journalist Joshua arap Sang.
“The petitioners have not stated what rights or fundamental freedoms they seek to protect. It is
not enough for them to allege a purported application before the ICC without evidence when it is a matter of judicial record that neither of the petitioners is a party to the proceedings
before it.”
Matsanga and Kimani had told the court that it was necessary to have their application for the
contents of the so-called Waki envelope heard urgently given the case against Ruto and Sang
resumes on March 23.
“On February 13 the first petitioner filed an application before the ICC will be highly prejudiced as the public documents being withheld secretly by the respondents (Waki, the ICC and the Attorney General) are crucial and necessary in prosecution of them above referenced application.”
They also argued that the continued withholding of the Waki commission’s finding on the alleged
masterminds of the 2008 PEV had led to heightened tension in light of Ruto’s pending case before the ICC.
“Non-disclosure of the names contained in the aforementioned report may lead to unnecessary
blame and accusations being traded between supporters of the various persons suspected to
be in the list which may end up in violent attacks,” they submitted.
Political activists David Matsanga and John Kimani moved to the high court to order Justice Phillip Waki, Office of the Prosecutor of ICC, and the Attorney General to ordered to publish and publicize, the entire full and proper report prepared by the commission of Inquiry into the Post-Election Violence (CIPEV) including the secret envelope containing the names of persons suspected to have borne the greatest responsibility for the postelection violence, which was submitted to Annan.
According to the court documents filed in court the petitioners David Matsanga and John Kimani argues that on 13 February Matsanga he filed an application at the ICC challenging the admission of the report by the commission of Inquiry into post-election Violence (CIPEV) as evidence in the case of the Prosecutor against William Samoei Ruto and Joshua Sang. The application has not been heard yet. In the application filed at the Milimani law courts, the two claim that they have to be availed with part of the report by CIPEV so as to prosecute the case pending before the ICC court.
They argue that the report are unlawfully, unreasonably, and illegally holding the report without any justification whatsoever.
According to the two, the disclosure of the contents and names contained in the sealed envelope is extremely necessary and important in implementing all the recommendations made by CIPEV and also to enable mandated state agencies take any additional or extra action regarding the said report if at all. The application before the ICC is scheduled for hearing on March 23 this year.
Although the Waki Commission did not publicly disclose the alleged perpetrators of the violence, the commission gave an envelope containing the names to Kofi Annan, who brokered a power-sharing agreement between Mr Kibaki and Mr Odinga.
In early 2009, Parliament rejected an amendment Bill for a special tribunal to try the suspects. Mr Annan then handed over the envelope in July 2009 to Luis Moreno-Ocampo, the then chief prosecutor at the ICC.

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