Kenya protests ICC ruling on pre-recorded evidence in Ruto case

Kenya is protesting to member states of the International Criminal Court (ICC) over a recent decision in which judges allowed pre-recorded evidence to be used in a case facing Deputy President William Ruto.

In a letter to the Court’s President Silvia Alejandra Fernández de Gurmendi and the President of the Assembly of State Parties Sidiki Kaba, Kenya’s Ambassador to the UN Macharia Kamau argued the judges’ decision was “regrettable and improper.”

“We wonder why the Court would take this course of action when it is surely aware of the understanding and decisions of the Assembly.

“The legal and moral hazard of such action(s) ought to be self-evident as it undermines the legislative oversight of the Assembly,” Mr Kamau wrote on August 25.

Two weeks ago, Trial Chamber (Va) judges allowed Prosecutor Fatou Bensouda to introduce evidence from witnesses who have since recanted their testimony against Mr Ruto and radio journalist Joshua Sang.

Mr Ruto and Sang are facing charges of crimes against humanity during the 2008 post-election violence in which 1,113 people were killed and more than 600,000 displaced.

Some witnesses have pulled out, disappeared or recanted their testimonies but Ms Bensouda petitioned the Court basing her argument on Rule 68, amended during the 2013 12th ASP meeting at The Hague.

Kenya is now complaining that although it had supported the amendments, it had been ‘promised’ by the Assembly that the rule will not apply on Kenyan cases.

“Kenya was duly assured, through consensus reached by States Parties, that the proposed amendments to Rule 68 shall not be applied retroactively.

“Moreover, specifically and crucially, Kenya was expressly informed that there would be no attempt to apply the amended rule 68 in the trials underway before the Court and more particularly so, in the trials relating to the situation in the Republic of Kenya,” Mr Kamau argued.

But Kenya had actually agreed to the amendment as a give-and-take scenario so that the Assembly could also amend rules that would ensure cases go on even if the Kenyan suspects were not present in court.

At the time, President Uhuru Kenyatta was also facing similar charges and it was feared there would be a vacuum if all of them were required to appear in Court.

Prosecutors dropped Mr Kenyatta’s case in December. Despite the ASP indicating the rule will not be used retroactively, it did not state clearly if it cannot be allowed in Kenyan cases.

“The government of Kenya wasn’t duped. No such promise was ever made by anyone from the ICC. This issue was discussed 3 ASPs ago, there was no agreement on non-retroactivity recorded at the ASP to the effect that the amended rule could not be applied in cases in the Kenya situation,” Steve Lamony Senior Advisor for AU, UN and Africa situations at the Coalition for the ICC told the Nation on Friday.

“Application of the law, including provisions on retroactivity in [the Rome] Statute or the Rules, is the job of the judges of the ICC and the matter was recently litigated against by the judges of the International Criminal Court.”

CICC is global non-profit organisation supporting the work of the Court though it is not affiliated to it.

Kenya now wants the next session of the ASP in November to include an item on the agenda to “review the implementation of the amended rule 68 as a thorough analysis” in what Mr Kamau argues will prevent putting Kenya in a clash with the Court.

Though admitting evidence from the five witnesses may be a blow to the defence, it does not guarantee prosecutors a win in the case.

Prosecutors have already ran through all the 29 witnesses though some refused to testify. When ordered to do so, they were eventually declared hostile.

The defence team has appealed the Chamber’s decision.