State, civil society to face off at the Hague


Civil society groups are once again set to clash with the Kenya government at the Assembly of State Parties (ASP) meeting scheduled to start on Wednesday in The Hague.

The government has mobilised at least 15 MPs to attend the meeting, and they have been briefed to lobby their counterparts from other countries that are parties to the Rome Statute to support the government’s efforts.

The initiative is double-pronged: the position endorsed by the attorneys-general and AU Justice ministers on Friday in Addis Ababa and the petition by more than half of Kenya’s National Assembly.

Kenya hopes to get countries to support the push to have an independent audit of the system used by the International Criminal Court (ICC) Prosecutor to identify witnesses and that Article 68 on the use of recanted evidence is not to apply to the case against Deputy President William Ruto.

The ASP has acknowledged receipt of the petition addressed to its president, Mr Sidiki Kaba, and put it on its agenda as a supplementary item.

The attorneys-general of African countries met in Ethiopia and agreed to support the petition to clarify Article 68, which was the intention of the State Parties that met in November 2013, the argument by Kenya goes.

“People generally agreed that no law applies retrospectively and we believed, all of us, that no law applies retrospectively. That is the trite law. Even us we know in common law that no law applies to you for a crime you committed before that law came into effect,” said Justice and Legal Affairs Committee chairman Samuel Chepkong’a.

Mr Chepkong’a is among MPs who will be travelling to The Hague.


He said the Kenyan delegation would go about the normal methods at meetings of this type to talk to other governments and their representatives.

He argued that with ODM chairman and Deputy Minority Leader Jakoyo Midiwo among the 190 MPs who supported the petition by signing it, it was not a Jubilee Alliance affair.

“It is a bi-partisan petition. It is not leaning on any party. This is a Kenyan position so no person should take it that it is a partisan position,” he added.

Pokot South MP David Pkosing’s petition, which calls for an independent audit of the identification of witnesses, was presented to the UN and ASP by Kenya’s permanent mission to the United Nations on October 13 with the ASP responding on October 27 that it will be presented as a supplementary item at its Assembly.

“Prayer rallies will not have an impact with the ICC judges. If the ICC was clever, then it would use this opportunity to withdraw the cases and save face,” Mr Pkosing told the Sunday Nation in solidarity with Mr Ruto and Mr Sang.

But among those who opposing these efforts are Kenyan members of civil society groups.

George Kegoro, executive director at the Kenyan chapter of the International Commission of Jurists, said that civil society groups are preparing a position paper, which will be distributed to all those at the ASP.

“We are very straight in our approach. There are no hidden cards,” he said.

“Our position is that Rule 68 is a court matter. It is a judicial matter. It is not about political discussions. That has been our position, and we have expressed long before, and we hope that is the position that will prevail at the assembly,” said Mr Kegoro.

“The Assembly has given Kenya all that it can give. There is nothing left to give Kenya. It is for the judges to interpret. Judges interpret rules of court everywhere. If you use a Kenyan situation; you can’t be in a court charged with a crime and then the court is adjourned and we say, ‘Let’s go to Parliament to discuss how that particular issue will be decided’. Once it is in court, let the court deal with it,” he added.

The same position was taken regarding Mr Pkosing’s petition, which Mr Kegoro said is part of Kenya’s pressure to ensure there is a political discussion.

“No basis has been given for (an independent audit). It is a splitting of hairs and no basis whatsoever for that kind of request,” he said.