ICC usurping the role of State Parties

Sunday March 13 2016

ICC Prosecutor Fatuo Bensouda (left) and Head of Jurisdiction Complementary and Cooperation Division Phakiso Mochochoko during a past  press briefing in Nairobi. PHOTO |  FILE | NATION MEDIA GROUP

ICC Prosecutor Fatuo Bensouda (left) and Head of Jurisdiction Complementary and Cooperation Division Phakiso Mochochoko during a past press briefing in Nairobi. PHOTO | FILE | NATION MEDIA GROUP 


The International Criminal Court has reached new depths of desperation in regard to cases emanating from the Kenyan situation.

To stave off inevitable collapse, the court has yet again abruptly, unilaterally and unfairly changed the rules of engagement, further eroding its standing as a transparent and impartial justice tribunal.

The manner in which it has chosen to affect these changes makes it clear that judges of the court do not respect the role of State Parties in its consultative process. These judges will even overreach their own powers to achieve a particular outcome.

Recently, the ICC issued a seemingly innocuous press release announcing that the judges had provisionally amended rule 165 of the Rules of Procedure and Evidence and adopted a new regulation.

This amendment essentially alters how suspects charged with Article 70 (offences against the administration of justice) will be treated during their trial. Mind you, the power to amend the Rules actually lies squarely with the Assembly of State Parties.

However, the judges claimed to have the power to make the amendment pursuant to Article 51(3) of the Rome Statute which reads: “After the adoption of the Rules of Procedure and Evidence, in urgent cases where the rules do not provide for a specific situation before the court, the judges may, by a two-thirds majority, draw up provisional rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of State Parties.”

Figure a situation where the courts in Kenya purport to amend the Criminal Procedure Code, without the involvement of Parliament or the Executive.

Members of the ASP ought to quickly move to stem this misconduct.

So as to maintain social order and political comity, it is important for the court to concentrate on its core mission as a judiciary, without doubling as part of the legislature and executive.

Even in a situation where the court can draw up new rules, it would be in an emergency and where there is a lacuna in the law. Yet here there is no urgent situation which could not wait for an ordinary session of the ASP or even a specially called session, so that the merits of such an amendment could be fully and publicly debated.

Nor is there a lacuna in the rules which would justify drawing up a provisional rule. Instead, the judges have amended an existing rule. This is ultra vires the power given to them by Article 51(3).


The amendments adopted by the judges are not minor. In addition to reducing the number of judges to sit in the Pre-Trial and Trial Chambers from 3 to 1, the amendment also strikes out several key provisions of the Rome Statute and purports to make them inapplicable to Article 70 cases. For instance, the amendment would mean that the accused would not have the right to seek an interlocutory appeal to challenge any decisions made by the single judge.

The single judge would also not have to hold a separate sentencing hearing if he or she was inclined to convict the accused. The right to appeal and to make arguments on core aspects of a case are central to any justice system. Yet the judges of the ICC now want to hurriedly wipe out those protections.

In a conspicuous confluence of events, this decision to amend rule 165 was made by the judges on February 10, 2016, two days before the Appeals Chamber unanimously announced that the recanted Rule 68 statements could not be used in the case against Deputy President William Ruto and radio journalist Joshua Sang.

The obvious result of that ruling is an eventual acquittal of the two, in response to the defence teams’ “no case to answer” motions. The acquittal should have come forthwith.

The reason for the delay has become apparent: The judges were stuck and they needed time to craft a way out. The judges can see that there is not a legal basis to proceed with the trial and yet they want to somehow hold on to the faulty cases or make an excuse why the discontinuation of the cases is due to the fault of the accused or their supporters, rather than as a result of a flawed prosecution and investigation.

It leaves one wondering why the urgency, why the desperation, why the backroom manoeuvres. But conceivably, if this amendment is allowed to stand, a suspect could be arrested on account of a warrant issued by a single judge, and that the accused would be taken through a 2-3 year trial process, presided over by a single judge, after which he would be convicted and sentenced by the same single judge.

Monari, an advocate, represented former police commissioner Hussein Ali at the ICC.