Kenya will use the next Assembly of States Parties meeting to push for a further amendment to a rule that allowed the ICC to admit pre-recorded evidence in a case against Deputy President William Ruto.
The country’s ambassador to the UN, Mr Macharia Kamau, said the government would use the November meeting in The Hague to revisit the controversial rule.
“If we feel compelled to have the rule legislated, we will do so. We can mobilise the support that we need to ensure this happens,” he told the Nation in Nairobi yesterday.
“However, what is important is not legislation per se, but the application of that law. If a prosecutor or a judge chooses to interpret or apply it differently from the understanding, then it is our duty to remind them,” he added.
Last month, Mr Kamau wrote to the assembly and the Presidency of the International Criminal Court after judges agreed to admit pre-recorded evidence from witnesses who have since renounced their testimony in a case facing Mr Ruto and former radio presenter Joshua arap Sang.
In a letter to the court’s President Silvia Alejandra Fernández de Gurmendi and Assembly of States Parties President Sidiki Kaba, the ambassador argued that the judges’ decision was “regrettable and improper”. “We wonder why the court took this action when it is aware of the understanding and decisions of the assembly.
The legal and moral hazard of such an action ought to be self-evident as it undermines the legislative oversight of the assembly,” Mr Kamau wrote on August 25.
In 2013, the assembly, which groups 193 member countries, agreed to amend the law to allow evidence gathered from witnesses who later refuse to show up in court.
At the time, Kenya argued that it was “assured” by the assembly that the rule would not be applied in the ongoing Kenya cases, although the clauses in the rule were not specific about it.
Asked if Kenya was naive not to ask for a clarification, Mr Kamau told the Nation that there was no need of doing so since most of the rules governing the ICC are based on an “understanding”.
“This is the only way to allow 193 countries at various development stages and with different demands to achieve a common goal,” said Mr Kamau.
“This was our understanding (that the rule would not be applied in the ongoing Kenya cases). It is an understanding that is shared by many countries,” he said.
Mr Ruto and Mr Sang are facing charges of crimes against humanity following 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 Prosecutor Fatou Bensouda successfully petitioned the court, basing her argument on the rule.