By: BERNARD NAMUNANE
The Assembly of State Parties meeting in the Hague kicked off with some success for the government after its agenda was allowed for discussion.
Kenya wants to convince the meeting — which makes laws for the International Criminal Court — that it was wrong for the court to use Rule 68, which permits Prosecutor Fatou Bensouda to use the evidence of witnesses who have disowned their testimony.
It argues that the rule was being applied retroactively in the case against Deputy President William Ruto and former radio journalist Joshua arap Sang.
The government argues that the rule was adopted well after the Kenyan cases started.
The Kenyan delegation is also arguing that there was a clear understanding when the rule was passed that it would not apply to ongoing cases.
ICC President Silvia Fernandez de Gurmendi and Ms Bensouda have warned that interference with the independence of the ICC could be detrimental to the fight against war crimes. They have urged the meeting to adopt decisions which will uphold peace and security.
Also massed against the government is a group of non-governmental organisations which is lobbying the meeting against allowing politics to erode the independence of the court.
The meeting opened with a plenary meeting during which the agenda of the 14th session was adopted.
“The ASP plenary has adopted the agenda containing Kenya’s two items. The two items are up for debate on Friday (tomorrow),” said a member of the Kenyan delegation to the ASP which is headed by Foreign Affairs Cabinet Secretary Amina Mohamed.
Rule 68 is important to the prosecution because it allows the prosecution to use the testimony of those declared hostile witnesses and which could be crucial in establishing the case against Mr Ruto and Mr Sang. The two are facing crimes against humanity charges over the 2007/8 post-election violence in which 1,133 people were killed and over 350,000 others displaced.
The evidence of the six witnesses declared hostile by the judges forms the core of the prosecution’s case against Mr Ruto. However, his lawyers have argued that it was the last straw which Ms Bensouda was holding on to.
Yesterday, Ms Mohamed said: “We are here to restate that rule 68 will not be applied to the case against DP and Sang.”
Kenya has rallied 34 African countries which have ratified the Rome Statute, the Caribbean nations and friendly countries in its push to reverse the use of rule in the Ruto and Sang cases.
Ethiopia’s Foreign Affairs Minister Tedros Adhanom Ghebreyesus was stinging in his criticism of the application of Rule 68 in Mr Ruto’s case and warned that Africa will not accept it.
“Use of recanted testimony against Deputy President William Ruto is an unacceptable practice that will set a dangerous precedent,” he said.
Tomorrow’s session will also see a petition signed by 190 MPs at the initiative of Pokot South MP David Pkosing seeking an audit of the way prosecution witnesses were identified in Mr Ruto’s case come up for discussion.
In the petition, the MPs argues that following revelations by Gatundu South MP Moses Kuria that prosecution witnesses were “procured and coached” to fix Mr Ruto by a government team, the ASP should form a team to investigate the allegations.
They also prayed that while the allegations of witness procurement were being investigated, the ICC should suspended the trial of Mr Ruto and Mr Sang.
The two items will come up tomorrow during which dozens of amendments to the Rome Statute will be debated and either adopted or rejected.
But as the Kenya celebrated its success on getting the two items on the ASP agenda, ICC President Silvia Fernandez and Ms Bensouda, in their speeches, urged the assembly to veto any move that will interfere with the independence of the court.
Judge Fernandez warned that to allow discussion of items which serve to interfere with the independence of judges will defeat the rationale the court’s establishment.
“Independence of the judicial and prosecutorial functions from external influence is essential to the court’s identity and the achievement of its goals.
Without independence, the court’s whole raison d´être is compromised,” said Judge Fernandez.
While vowing that she will not shy away from playing her role, Ms Bensouda urged the meeting to respect the separation of powers between the ASP and the ICC.
“States Parties have an important oversight function over the institution as prescribed by the Statute, but they have an equally important role to play in ensuring that the course of justice is always respected,” she said.
Coalition of International Criminal Court, Human Rights Watch (HRW) and International Federation of Human Rights (FIDH) have put forward their own amendments which seek to reduce the powers of the ASP over the ICC judges and prosecutors.
SOURCE: DAILY NATION