Ruto’s new filing keeps ICC agenda alive

Deputy President William Ruto’s counsel Karim Khan (left) at The Stanley Hotel on April 6, 2016. Mr Ruto's defence team accuses court officials of sexual misconduct with some witnesses. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • Mr Ruto’s filing demands that four prosecution witnesses be investigated, together with any other individuals, for offences against the administration of justice.
  • Mr Ruto’s defence claims that these prosecution witnesses lied and also alleges that intermediaries and officials in the office of the Prosecutor tampered with the collection of evidence by identifying and coaching witnesses.
  • The Ruto defence also claims that staff members of the court might have engaged in sexual relations with witnesses and their families, and were party to false financial claims made on the Victims and Witnesses Unit.

Notwithstanding the declaration of a mistrial in the case against Deputy President William Ruto, which brought an end to his trial before the International Criminal Court, Kenya’s problems with the court seem far from over with a new filing by Mr Ruto last week making accusations of financial and sexual impropriety against court officials.

This latest filing coincides with the ongoing diplomatic onslaught against the ICC, which will culminate in a meeting next week between African Union representatives and members of the UN Security Council in New York.

The meeting is to press a number of demands that the AU is making about the reform of the ICC, against a threat that if the demands for reform are not met, the AU will seek a mass pull-out by its members from the ICC. Mr Ruto’s filing demands that four prosecution witnesses be investigated, together with any other individuals, for offences against the administration of justice.

Mr Ruto’s defence claims that these prosecution witnesses lied and also alleges that intermediaries and officials in the office of the Prosecutor tampered with the collection of evidence by identifying and coaching witnesses.

The Ruto defence also claims that staff members of the court might have engaged in sexual relations with witnesses and their families, and were party to false financial claims made on the Victims and Witnesses Unit.

The defence points out that it has previously made these complaints and had asked for investigations but that the office of the Prosecutor “has proved to be unwilling or unable to pursue investigations against its own witnesses and intermediaries”.

The defence is seeking the appointment of an independent “amicus prosecutor” who will report directly to the Prosecutor and Deputy Prosecutor to carry out an investigation of these claims. In the alternative, Mr Ruto’s defence is seeking an order that the matter be transferred to the Kenyan authorities for investigation and prosecution.

As stated in the filing, Mr Ruto’s complaints about prosecution witness tampering are not new, and have been made many times before. What is new is the claim about sexual misconduct on the part of court officials. Mr Ruto’s demand for the appointment of an amicus prosecutor is also new and has not been made before.

WITNESS TAMPERING

It remains unclear how the court will deal with the matter. Previous allegations of witness tampering, which were made by the Prosecution, yielded two independent cases at the ICC, the first against journalist Walter Baraza and the second against lawyer Paul Gicheru and Mr Kipngetich Bett against whom the court has issued a joint arrest warrant.

Going by this practice, the court may decide that Mr Ruto’s new allegations, although connected to his case at the court, should be addressed separately, the same way that those made by the Prosecutor have been handled.

There is no precedent for the appointment of an “amicus prosecutor” as demanded by the Ruto team, and it will be interesting to see how this particular demand is handled.

Next week’s meeting in New York, a continuation of measures spelt out by the AU Summit in January, will be informal and is between members of the AU Open-Ended Ministerial Committee of Foreign Ministers and the UN Security Council. The meeting is supposed to provide an informal occasion to raise the AU concerns about the ICC.

A previous meeting of the Open-Ended Committee, held in Addis Ababa last month resolved to take up with the Security Council, three issues of concern to the AU regarding the relationship with the ICC.

The three issues are a demand that the Rome Statute should be amended to provide for immunity from trial for heads of state and government and senior government officials, second, a requirement that the ICC should assume jurisdiction in cases from Africa only with the consent of the AU; and third, that there should be a reduction in the powers of the ICC Prosecutor.

CONFRONTATIONAL APPROACH

The meeting, chaired by Ethiopia’s Foreign Minister Tedro Gebreyesus was attended by six foreign ministers, including Kenya’s Amina Mohammed. Other Foreign ministers in attendance included those from Burundi, Uganda, Somalia, South Africa and Sudan, the African countries that have had the greatest voice in demanding changes at the ICC. Twelve other countries were represented at ambassadorial level.

The AU plans to stage a mass withdrawal for African members of the ICC if these demands are not met.

It is understood that the AU has decided to change tactics from the confrontational approach that has characterised its previous engagements about the ICC, to a more consultative approach.

The Addis Ababa meeting also endorsed Kenya’s demand that the cases of witness tampering in the Ruto trial, for which the ICC has issued two arrest warrants, should be tried in Kenya, rather than at the ICC. The meeting noted that “the ICC has lost the Kenyan cases at the highest level and therefore those persons alleged to have interfered with the witnesses should be tried at home.”

The notes from the ministerial meeting show that allegations of corruption had been made against members of the staff of the office of the Prosecutor and a judge of the ICC in relation to the Darfur case and there is a recommendation that the AU should take up the matter with the Assembly of States Parties.

It is not clear whether there is a mistake in the notes, which might have been referring to the Kenyan cases.

If not, then the AU is pursuing two allegations of misconduct against ICC officials, the first one in the Ruto case, and the second in the case against President Bashir.