• Petitioner filed to amend the petition to declare that concealment of its contents was a violation of rights.
• He also sought to have AG reveal its contents and for it to be quashed.
Image: FILE
The Attorney General won't be compelled to disclose the contents of the secret Waki envelope containing the names of suspected key perpetrators of the 2007-08 post-election violence.
High Court judges Kanyi Kimondo, Roselyn Aburili and John Onyiego said there was no proof the AG ever received the sealed envelope.
The three-judge bench also held that the petitioner in the case did not prove that they requested for the information and that the AG declined to supply it.
“The petitioner also failed to prove that the sealed envelope was submitted by the Commission of Inquiry into the Post-Election Violence to the President, the National Assembly or the Attorney General or that it ever got its way back to the state machinery after its submission to the chair of the panel and eventually, to the ICC...,” court documents read.
The court also said it has no jurisdiction to compel the International Criminal Court to produce the sealed envelope that Justice Philip Waki handed over to former UN chief Kofi Annan on the 2007-08 post-election violence.
They said the ICC enjoys immunity from national courts.
“Even assuming for a moment that the envelope is in the custody of the ICC, that court enjoys immunity from national courts,” they said.
In the case, the original petition dated March 10, 2015, was filed by David Matsanga and John Kimani. The respondents were Justice Waki, the office of the prosecutor of ICC and the Attorney General.
Waki had objected and challenged his inclusion in the petition. The objection was upheld. In June 2016, Kimani sought permission to amend the petition.
He remained the sole petitioner while the AG and OPICC were the respondents. Subsequently, the Chief Justice constituted a three-judge bench to hear the petition.
The amended petition sought a declaration that the continued concealment of the contents of the report prepared by CIPEV, being the sealed envelope, is a violation of his rights.
Also sought was an order compelling the AG to obtain and disclose the concealed contents of part of the report and a further order seeking to quash the report.
But the judges declined to quash the report saying it would be unjust as it had made several other useful recommendations which have already been implemented, besides the materials in the sealed envelope.
“To quash the entire report will have far-reaching ramifications,” they said.
The judges held that the disclosure of the sealed envelope does not outweigh CIPEV’s contribution towards the restoration of peace, the fight against impunity and the birth of a new Constitution.
They said it is an indisputable fact that the final report was a public report and, therefore, qualified as public information but the right to access information is not absolute.
"The petitioner must demonstrate that he has suffered injury as a result of non-disclosure of the information sought," they said.
Edited by R.Wamochie