Kenya has protested against the ICC judges’ provisional amendment of a crucial rule.
The change, if adopted by States Parties, may speed up the arrest and conviction of individuals accused of offences against the administration of justice, including witness tampering.
Foreign Affairs Cabinet Secretary Amina Mohamed sent the government’s protest letter to the International Criminal Court president, Judge Silvia Fernandez de Gurmendi, on March 11.
“Kenya appreciates the efforts of the judges to expedite the judicial process and enhance efficiency. However, this should be done in accordance with the existing laws,” wrote Ms Mohamed.
According to the CS, the proposed amendment is contrary to Article 51(3) of the Rome Statute that states that changes to the Rules of Procedure and Evidence can be adopted “only if the rules do not provide for specific situation before the court”.
“In other words, the role of the plenary of the judges is only limited to filling an existing lacuna. We are not convinced that in the current situation, there is a lacuna to fill in relation to the number of judges presiding over Article 70 cases,” she stated.
The plenary of the ICC judges on February 10 provisionally amended rule 165 of the Rules of Procedure and Evidence, which addresses the procedures related to Article 70 proceedings for offences against the administration of justice.
The proposed amendments the ICC judges want the States Parties to adopt “allow for the respective functions of the Pre-Trial Chamber and the Trial Chamber, including the confirmation of charges and the trial, to be exercised by one judge, instead of a chamber of three judges.”
Furthermore, the provisional amendment allows for appeal proceedings to be conducted by a panel of three judges, instead of the Appeals Chamber that is composed of five judges.
“The judges of the court considered that these amendments will enhance the overall efficiency of proceedings before the court,” said the ICC.