Kenya, ICC fight over Ruto case


The government was yesterday pushing its diplomatic campaign to rally the Assembly of State Parties to reverse a rule which allowed the use of recanted evidence in the ICC case against Deputy President William Ruto and Mr Joshua arap Sang.

Cabinet Secretaries Raychelle Omamo (Defence) and Amina Mohamed (Foreign Affairs) led the charm offensive ahead of the meeting of the ICC member States as it emerged that the court had written to the State Parties asking them not to debate any matter that could interfere with the independence of the judges.

Ms Omamo was in London, the United Kingdom to meet the US Defence Secretary, Mr Ashford Carter, and UK Foreign Secretary, Mr Philip Hammond, to seek their support in reviewing Rule 68 during the ASP meeting which opens today at The Hague.

Kenya has placed two requests before the State Parties. First, it is seeking a declaration that the rule allowing the use of recanted evidence should not to be used retroactively.

When the last meeting of the State Parties voted for the clause, there was an informal agreement that it would not apply to the Kenya cases, which were already before the court.

Kenya is also seeking a mechanism to audit the prosecutor’s system of identifying witnesses, which has been wrought with allegations of “procurement” and “coaching”.

Gatundu South MP Moses Kuria had in September said that he was involved in procuring witnesses for the Waki Commission on post-election violence and that some of the witnesses were approached by ICC investigators.

There have also been allegations that some witnesses in the Kenya cases had been coached.

In August, Trial Chamber judges allowed Prosecutor Fatou Bensouda to use recanted evidence by six hostile witnesses whose testimonies were taken as key in the case against Mr Ruto. However, Mr Ruto’s lawyer, Mr Karim Khan, protested at the decision saying it was detrimental to his client. He later appealed against the decision. The appeal is still pending determination.

The Ministry of Foreign Affairs confirmed that Ms Mohamed flew out yesterday in readiness for the meeting which has also attracted a team of at least 20 MPs.

“The stakes are high,” said a ministry official, underlining the importance of the talks and Kenya’s determination to push its case.

ICC President Silvia Fernandez de Gurmendi, Ms Bensouda and Registrar Herman von Hebel have also asked the State Parties to avoid adopting decisions that could erode the court’s independence in determining the cases before it.

“It is respectfully submitted that in accordance with the role of the Assembly within the powers of the Rome Statute system, the Assembly must refrain from any action that interferes with the judicial independence in this respect, or gives the perception thereof,” the ICC said in a letter dated November 13 and addressed to ASP President, Mr Sidiki Kaba.

While they agreed that the ASP has the powers to adopt any amendments to the Rome Statute, the ICC trio argued that the implementation and interpretation of the rules lies with the court.

“It must equally be stressed that issues relating to the application, implementation and interpretation instruments within the context of an active case/proceedings fall strictly within the judicial functions of the ICC,” they said.

A team of more than 20 MPs will fly to The Hague today to join the government team in pushing for a review of Rule 68.