ICC’s misconduct in Uhuru case must be exposed

It is not entirely clear why the ICC is hanging on to a case that was a stillborn from the very outset. One would have imagined that the day the Chief Prosecutor announced the lack of evidence to sustain a credible prosecution in the case against President Kenyatta, the Judges should have terminated the case without much ado. But what we are seeing day in, day out, are never ending theatrics and sideshows from the court, the latest being the bizarre warning directed at the Kenya government over alleged leakage of confidential information.

While there has been much attention on these sideshows, little seems to have been said about the role of the court itself and particularly the Judges in the drama that has unfolded over the last four years.

For instance there have been serious allegations of impropriety on the part of some of the judges who participated in the confirmation decision which certified the Kenyatta case for trial.

In a public filing by Mr Kenyatta’s defence dated February 5, 2013, his lawyers noted that key facts underlying the confirmed charges against their client had been based upon a fraudulent concealment of key prosecution evidence that exonerated Mr Kenyatta and that the defence evidence which went to the truth of the matter was wrongfully rejected by the pre-trial chamber.

The defence further accused a judge of the pre-trial chamber of failing to adhere to the established practice of the court with regard to issues of disclosure of information to the defence, and that the said judge had acted disproportionately by withholding the evidence from the defence leading to the confirmation of the case that should otherwise have collapsed at that point in time.

The defence further observed that there was clear evidence that the judge had failed to take particular care when considering the unfairness and overall impact that the withholding of this key evidence would have to the defence.

In a well-functioning judicial system, the mistakes made by either the judges or parties to the proceedings would be readily acknowledged. Not so for the ICC where passing the buck appears to be the norm.

I have severally heard about threats to refer Kenya to the Assembly of States Parties for alleged non-co-operation with the court. Attorney General Githu Muigai does not appear to be too worried about any such referral and I would agree with him. And now has come the warning about alleged confidential information. Why is the ICC always pre-occupied with petty, mundane matters instead of substance, fairness and due process?

Given the serious deliberate procedural and substantive improprieties that have bedeviled both the Kenyatta and Ruto cases, hasn’t the time come for Kenya pick the gauntlet and demand formal investigation of the ICC by the Assembly of States Parties? A perfect case of the hunter becoming the hunted but the most appropriate manner to proceed in the circumstances.

I don’t believe that those who conceived the idea of a Permanent International Criminal Court intended a rogue institution that would be answerable to no one. Just like the Assembly of States Parties has the power to take appropriate action against a non-compliant member, it must equally have the power to investigate misconduct on the part of the court particularly where it abandons its mission of administering justice according the statute and embarks on a witch-hunt and apparent fulfillment of some political objective as has so clearly been evident in the Kenyan cases.

The fact that the oversight mechanism contemplated under Article 112(4) of the Rome Statute has not been actualised does not render the Assembly of States Parties impotent in the face of the many transgressions that the court has been guilty of. Indeed under Article 112 (2) (b), the Assembly is mandated with provision of management oversight to the Presidency, the Prosecutor and the Registrar of the Court.

In my view, Kenya would have an exceedingly strong case against the ICC at the Assembly of States Parties which could include the parading of its citizens before the court as suspects/ accused on fictitious, flippant charges based on illegally obtained evidence, concealment of key exonerating evidence, alleged bribery of witnesses by the prosecution, failure to withdraw and/ or terminate the Kenyatta case even after unequivocal admissions on the lack of evidence etc.

I urge the Kenya government’s chief legal officer Prof Githu Muigai to commence the process of referral of the Court to the Assembly of States Parties for appropriate action and sanctions.