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Ugandan scholar David Nyekorach Matsanga with Kalenjin council of elders lawyer William Arusei engage outside Milimani law courts after filing an application seeking the council to be enjoined in a case in which Matsanga is seeking retired justice Philip Waki secret report in an envelope that was forwarded to ICC made public on Friday 10 July,2015.
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.
On Friday Elders from the Kalenjin community have urged the High Court to enjoin them in a case challenging the admissibility of the 2007/2008 post election violence report compiled by Justice Philip Waki, alleging that their views were never heard and their constitutional rights were violated.
Myot Welfare Association pleaded with Justice Isaac Lenaola on Friday to permit them to present evidence which will “go into the root of the spontaneous violence that rocked parts of the Rift Valley and other parts of the country”.
Justice Lenaola heard from lawyer William Arusei that “the Kalenjin community was not allowed to give its views yet it was adversely mentioned as perpetrators of the mayhem which left over 1,000 people dead and over 600,000 others pushed out of the expansive Rift Valley”.
Mr Arusei told the court the Waki report has “denigrated, belittled, defamed and prejudged the Kalenjin as a community individually or collectively and ascribes guilty to the past, present and future generations of the community”.
“The applicants would like to have their say in the matter and also have their day in court by being permitted to ventilate their side of the story,” Mr Arusei told Justice
Lenaola adding: “One should not be condemned unheard since it is the cornerstone of the rule of law.”
The elders are asking the court to give orders that the the report should not be admitted as evidence at the ongoing trial of Deputy President William Ruto and radio journalist Joshua Arap Sang at the International Criminal Court at The Hague.
ICC Prosecutor Fatou Bensouda intends to use the report in the ongoing case to press for the conviction of the DP and the broadcaster.
Mr Arusei told the judge the Kalenjin Council of Elders wants to be allowed to participate in a case
Filed by Ugandan scholar David Nyekorach Matsanga and John Muiruri Kimani.
Mr Matsanga told the judge that he is not opposed to the request by the elders saying their input will strengthen his case.
The chairman of the elders, Major Rtd John Seii, says the the organization has broad objectives pegged on the ideology to “promote peaceful co-existence with all neighbors”.
The judge directed the application by the elders seeking to be enjoined in Matsanga case be heard in September 16, 2015.
In the case, Mr Matsanga has named Justice Waki, the Office of the Prosecutor of the ICC and the Attorney-General as the defendants.
Mr Matsanga is asking the High Court to quash the Waki report, saying many interested parties’ views and input were not factored.
He says the report is unconstitutional and an affront to justice and the rule of law.

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