Kenya cannot compel witnesses to testify, Githu tells ICC
A file photo taken on February 19, 2013 shows International Criminal Court (ICC) Prosecutor Fatou Bensouda (R) and senior trial lawyer Eric Mac Donald (L) attending a hearing before the ICC in The Hague. Attorney-General Githu Muigai on April 11, 2016 Ms Bensouda of attempting to shift global attention on her failures in the Kenyan cases. AFP PHOTO
What you need to know:
- Prof Muigai argues that the ICC prosecutor cannot legally and legitimately impose obligations on Kenya as a state party to the Rome Statute outside the limits permissible by the Rome Statute.
- He challenged the ICC prosecutor to respect the country’s sovereignty and independence of her judiciary by allowing its national courts to interpret the laws as regards witness appearance.
The government has no power to compel witnesses against Deputy President William Ruto who dropped out for various reasons to testify before the ICC, Attorney General Githu Muigai has told the Trial Chamber V (A).
Prof Muigai characterised the ICC prosecutor Fatou Bensouda’s interpretation of the Kenyan law regarding the appearance of witnesses to testify before the ICC as “flawed” while also faulting the office of the prosecutor for abrogating itself the responsibility of interpreting Kenyan laws.
“The Government of the Republic of Kenya submits that while it is feasible under the laws of Kenya for witnesses to voluntarily appear before the Court sitting at an appropriate location of its choice in Kenya (in situ or by means of video-link technology) for purposes of testifying before the Court, the Government of the Republic of Kenya submits that under its national law, in particular The International Crimes Act, No. 16 of 2008, a witness cannot be compelled to appear and testify before the Court regardless of where the Court is sitting,” the AG said in a written response to the prosecution’s request that witnesses who gave their statements and later withdrew be compelled by Kenyan authorities to appear before the ICC.
Trial Chamber V(A) which is hearing the post-election violence cases against Mr Ruto and former journalist Joshua Sang had in its earlier decision on status conference and additional submissions related to prosecution’s request directed that the government makes a written response to the chamber.
The court has scheduled a public status conference for February 14 at 09:30 (The Hague time) to discuss matters related to the prosecution’s request to summon witnesses’.
The hearing, according to the ICC, will be held in the presence of the prosecution, defence, legal representative of victims “and, if they wish to attend, representatives of the Government of Kenya.”
According to the government’s reading of the law, the Rome Statute employs the principle of voluntary appearance of witnesses to testify before the Court “whether at the seat of the Court or within the territory of Kenya. Thus, the Court has no power to request the Government of the Republic of Kenya to compel unwilling witnesses to appear and testify before the Court.”
Prof Muigai further argues that the ICC prosecutor cannot legally and legitimately impose obligations on Kenya as a state party to the Rome Statute outside the limits permissible by the Rome Statute.
“Requiring the Government of the Republic of Kenya to exercise judicial authority in compelling witnesses would be an attempt at imposing obligations on a State Party that exceed the treaty obligations,” he said in his February 10 filing.
“The Government of the Republic of Kenya submits that the Prosecution improperly arrogated to itself the power to interpret Kenya’s national law, which according to Kenya’s Constitution, 2010 is a preserve of Kenya’s courts, as it relates to the appearance of witnesses to testify before the Court and powers of the Kenyan Courts in that regard.
"The Prosecution can only offer what its understanding of the Kenyan national law on summoning witnesses is and cannot assert what the interpretation and application of Kenyan legislation actually is, as the Prosecution purports to do at paragraph 80,” the government argued.
As such, the AG wants the Trial Chamber V(A) to find that the prosecution’s request falls outside the realms of the Rome Statute.
In any case, the AG challenged the ICC prosecutor to respect the country’s sovereignty and independence of her judiciary by allowing its national courts to interpret the laws as regards witness appearance.
“The Prosecution has not demonstrated that Kenyan courts are incapable of dispensing this constitutional duty of interpreting her laws and obligations under treaties for the Prosecution to purport to do this for Kenya,” asserted Prof Muigai.
Instances of prosecution witnesses withdrawing their statements and stating their unwillingness to testify against either Mr Ruto or President Uhuru Kenyatta have become a major concern for Ms Bensouda’s office. The office of the prosecutor has at various times accused Kenyan authorities of lack of cooperation and blocking their investigations.
In the Kenyatta case, the court is also due to hold a status conference Thursday to discuss the prosecution’s request that the ICC finds the government in disregard of its obligations under the Rome Statute for baulking on a request for the president’s financial statements.
The financial statements are crucial, according to the prosecution which accuses President Kenyatta of financing the Mungiki to commit atrocities during the 2007/08 post-election violence.
