Judge dissents, sides with Ruto on witness summonses

By FELIX OLICK

THE HAGUE: One of The Hague judges has sided with Deputy President William Ruto in opposing compulsion of eight witnesses to testify against him, bolstering the latter’s intended appeal against the decision.

Judge Olga Herrera Carbuccia differed with her two colleagues and insisted that the Rome Statute envisages only voluntary appearance of witnesses.

“I respectfully disagree with the finding of the majority that the Government of Kenya has the legal obligation, pursuant to Article 93 (1) (d) and (l) of the statute, to enforce such summons,” she stated in her dissenting opinion this week. On April 17, the judges by majority allowed an application by the prosecution to have the Kenyan authorities forced to avail the witnesses using all means available under the laws of Kenya.

“There are no provisions in Kenyan domestic law that prohibit this kind of cooperation,” the judges observed.  The prosecution has justified the issuance of the summonses to compel the appearance of the eight witnesses.

The eight witnesses gave statements to the prosecutor variously describing the post-election violence period but later withdrew from the process. Ruto and Attorney General Githu Muigai have indicated that they intend to appeal the ruling and were only waiting for the dissenting opinion of the judge from Dominican Republic.

According to Carbuccia, the majority acted beyond its mandate, cautioning that it’s dangerous for the Chamber to extend the scope of the Statute.

In her opinion, Judge Carbuccia also argued that the ICC cannot compel Witnesses to take to the stand if the Court cannot guarantee their security.

No guarantee

“Even if one would agree that the ICC has subpoena (summoning) powers, given the security concerns of most witnesses who have appeared thus far in this trial, the court firstly has to guarantee their protective measures pursuant to Article 68 (1) of the statute, before compelling any witness to testify,” she argued.

According to the judge, the court’s Victims and Witness Unit has stated that they will only arrange the witness availability for testimony as long as the individuals consent to appear has been sought.

Githu had initially told the Judges that that it will not compel any of its nationals to testify and trashed the Prosecution request as unconstitutional.

The AG maintained that the Rome Statute and the International Crimes Act-which domesticates the Statute in Kenya does not provide for witness compulsion. “This court should not even contemplate issuing an order for Kenya to summon witnesses as this will violate the Rome Statute,” the AG told the three judge bench yesterday.