The International Criminal Court appears intent on asserting its judicial authority despite the on-going political processes in Kenya, following the publication of four major decisions and notifications on Thursday.
This comes amid fears that more arrest warrants could be issued against individuals, mainly close confidants of Deputy President William Ruto and Mr Joshua Sang, accused of witness tampering.
According to sources, the admission of prior-recorded statements of witnesses could have triggered the new arrest warrants.
Meanwhile, Prof Alex Whiting, an international law expert and a former ICC prosecutions coordinator now based at Harvard Law School, explained that the Deputy President faces an uphill task in having the majority decision on use of prior-recorded statements reversed by the Appeals Chamber.
“It is always difficult to predict judicial decisions but my best guess is that the Trial Chamber’s decision will be affirmed by the Appeals Chamber, and I believe it will be on the basis of Rule 68 rather than Article 69(3),” Prof Whiting told Sunday Nation in an interview.
According to the Harvard Law scholar, reliance on the amended Rule 68 does not constitute a retroactive application of a rule change.
“It simply applied the new rule to a request arising in an on-going case and did not change any prior decisions in the case or affect any fundamental rights of the accused. The accused do not have a right to benefit from interference with witnesses,” he said.
On August 19, Trial Chamber V(A), by the majority, granted Prosecutor Fatou Bensouda’s request to use in evidence the prior recorded testimony “for the truth of its contents” of a number of witnesses pursuant to Rule 68(2) (c) and (d) of the Rules of Procedure and Evidence.
The decision has once again raised concern among associates of Mr Ruto and Mr Sang, leading to political cum-prayer rallies that started in Kaptororo, Nakuru County, to put pressure on the court to terminate the charges against the two.
Amid the on-going political process over application of Rule 68, the court on Thursday published four decisions and filings that could have far-reaching consequences on the case.
These were the decision allowing Mr Ruto and his co-accused Joshua Sang to appeal the admission of prior recorded statements into evidence.
Secondly, the decision rejecting Mr Walter Barasa’s application to have the warrants of arrest against him withdrawn and replaced with a summons to appear.
Thirdly, ICC judges unsealing an arrest warrant against Mr Paul Gicheru and Mr Philip Kipkoech Bett for alleged witness tampering, and prosecutor Bensouda’s notification of closure of the prosecution’s presentation of evidence. This now hands back the case to the defence to either file a no-case-to-answer motion or start calling their witnesses once the appeal of prior recorded statements decision is dispensed with.
A day earlier, Ms Bensouda had requested re-characterisation of modes of liability for Mr Sang beyond just being a contributor to the post-election violence but also “soliciting or inducing” or of “aiding and abetting” the crimes.
In neighbouring Uganda, the Pre-Trial Chamber II on Thursday recommended holding the confirmation of charges hearing against Lord’s Resistance Army commander Dominic Ong’wen in that country.
This will be historic for the ICC, after having rejected Kenya’s request to have the post-election trials held in Arusha, Tanzania, or within Kenya.
Not only is the ICC holding a national of Uganda, but it intends to hold sittings at the doorstep of President Yoweri Museveni, who has been a strong critic of the court.
The totality of these decisions and applications could prove that the ICC is willing to play hard ball with Kenya in particular, and Africa in general.
Although the actions by ICC and the political goings-on may be unrelated, they could also be sending a subtle message to Kenya that no matter how much criticism is directed at the court, it will stick to the law.
“For me, it is just a mere coincidence. The court is carrying out its judicial role, whether or not there are political processes outside the judicial process,” public international law expert Mokaya Orina said.
Similar pressure has come from the diplomatic level as Kenya’s ambassador to the UN, Mr Kamau Macharia, protested to the Assembly of State Parties (ICC) to the Rome Statute of ICC on September 4 to the admission of prior recorded statements of witnesses under the amended Rule 68 of the ICC’s Rules of Procedure and Evidence.
“The Permanent Mission of Kenya wishes to inform that as a concerned State party, Kenya states that, the position taken by the court is most regrettable, and in our assessment, improper.”
“The legal and moral hazard of such action(s) ought to be self-evident as it undermines the legislative oversight of the Assembly,” Mr Macharia’s letter to ASP President Sidiki Kaba reads in part.