Anxiety as ICC rule talks falter

Kenya’s quest to have the Assembly of State Parties in The Hague rule in its favour appeared to be in dire straits on the last day of the negotiations that have a bearing on Deputy President William Ruto’s ICC case.

By Thursday evening (Kenyan time), the talks had been referred at least twice to the ASP Bureau for further negotiations, after the Kenyan delegation led by Foreign Affairs Cabinet Secretary Amina Mohammed threatened Kenya would pull out of the Rome Statute altogether, if it did not get a favourable ruling.

Should the ASP Bureau talks, chaired by Senegal’s Justice Minister Sidiki Kaba, fail, the attempt by Kenya to have Rule 68 shelved, will be left to the ICC judges, where Mr Ruto’s lawyers have appealed.

Rule 68 is important to the prosecutors because it allows them to use the testimony of those declared hostile witnesses and which could be crucial in establishing the case against Mr Ruto and former radio presenter Joshua arap Sang.

The two have been charged with crimes against humanity over the 2007/8 post-election violence in which 1,133 people were killed and over 350,000 others displaced.

Ms Mohammed on Thursday expressed Kenya’s frustration at the talks during the last day of the negotiations in a tweet.

“I registered strong objections to the lack of genuine commitment to address Kenya’s concerns.

“I indicated that Kenya would have no option in the circumstances other than contemplate withdrawal,” she said.

KENYA'S ARGUMENT
Kenya’s intense lobbying at the ASP World Forum talks appeared not to have yielded the desired fruits, despite having sent a large delegation of politicians and government officials whose trip cost taxpayers millions of shillings in air fare and accommodation in the Dutch city.

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.

It argues that the rule is being applied retroactively in the case against Mr Ruto and Mr Sang.

The Kenyan delegation is also arguing that there was a clear understanding at the time the rule was passed that it would not apply in ongoing cases.

ICC President Silvia Fernandez de Gurmendi and Prosecutor Fatou Bensouda have warned that interference with the independence of the court could be detrimental to the fight against war crimes.

They have urged the meeting to adopt decisions that will uphold peace and security.
Also massed against the government is a group of non-governmental organisations, which are lobbying the meeting not to allow politics to erode the independence of the court.

Kenya has rallied 34 African countries that have ratified the Rome Statute, the Caribbean nations and other friendly countries in its push to reverse the use of the rule in the Ruto and Sang cases.

Kenya is also seeking an audit of the way prosecution witnesses in Mr Ruto’s case were identified, through a petition signed by 190 MPs at the initiative of Pokot South MP David Pkosing.

In the petition, the MPs argue that following revelations by Gatundu South MP Moses Kuria that prosecution witnesses were “procured and coached” by a government team to fix Mr Ruto, the ASP should form a team to investigate the allegations.

They also requested that while the allegations of witness procurement are being investigated, the ICC should suspend the trial of Mr Ruto and Mr Sang.