Jubilee and Cord MPs petition UN to stop DP Ruto trial at The Hague

At least 50 Opposition MPs are among 190 lawmakers who have signed a petition urging the United Nations to suspend the International Criminal Court (ICC) trial of Deputy President William Ruto.

Orange Democratic Movement Chairman John Mbadi and Gem MPJakoyo Midiwo, are among MPs who have backed the petition to the United Nations Security Council and the presidency of the Assembly of States Parties (ASP) of the Rome Statute, which meets between November 18 and 26.

In a notice dated October 27, the secretariat of the ASP circulated the list of supplementary items requested for inclusion in the agenda of the 14th session of the assembly, which includes the petition by the Kenyan lawmakers sponsored by Pokot South MP David Pkosing.

The Permanent Mission of Kenya to the United Nations forwarded the October 13 petition to the President of the Assembly, Sidiki Kaba, requesting suspension of Ruto and Joshua Sang's trials to allow an independent investigation into the credibility of prosecution witnesses.

The MPs' petition refers to allegations that a number of prosecution witnesses were procured, prepared, facilitated and instructed to implicate Ruto and Sang.

They are asking the ICC to suspend the cases to await determination of an independent audit into the credibility of the investigations.

The petition reads: "The President of the ASP, through his office, invokes the provisions of Article 112(4) of the Rome Statute and Rule 83 of the ASP Rules of Procedure to immediately appoint an independent mechanism to audit the prosecutors' witness identification and recruitment processes to establish the impartiality of the process and determine the current allegations and revelations of procuring and coaching of witnesses to implicate the accused... The ICC suspends the cases of the two Kenyans...Further, that the United Nations supports the prayers of these petitioners."

Also, Kenya wants the ASP to consider its petition to stop the ICC from relying on prior recorded testimony of five prosecution witnesses who have since recanted their testimony against Ruto. Kenya has contested application of the new Rule 68 of the Rules of Procedure and Evidence through which judges allowed an application by Prosecutor Fatou Bensouda for admission of prior recorded testimony of the witnesses.

The previous Rule 68 required that for prior recorded testimony to be introduced in lieu of oral evidence, both the prosecutor and defence should have had an opportunity to cross examine or question the makers. This requirement for cross-examination was removed in the amendment that was opposed by Kenya and other African countries in December 2013 after the commencement of the Kenyan cases.

Kenya insists the amendments were passed after assurances were given to the ASP that the amended Rule 68 would not be applied to the ongoing Kenyan cases, but the prosecution denies ever giving such an undertaking. A draft decision that Kenya wants discussed at the upcoming Assembly wants the 14th Assembly to reassert that the implementation of the new Rule 68 "will not negatively affect the rights of an accused person."

South Africa also wants inclusion of an agenda to develop clear rules and procedures on the application of Article 97 requests by State Parties to the court to resolve problems that they may experience, which may impede or prevent the execution of co-operation requests by the Court.

This comes after a protracted legal tussle in June when President Jacob Zuma's government declined to arrest ICC fugitive Sudanese President Omar Al-Bashir and surrender him to the court.

The latest push to 'save' Ruto from the ICC adds to other ongoing parallel legal and political initiatives. They include President Uhuru Kenyatta's charm diplomatic offensive to convince world nations to pressurise the UNSC to suspend the Kenyan trials.

Ruto's defence has also appealed against the admission of recanted testimony and also awaits hearing of a 'no case to answer' motion that argues the prosecution has put up a weak case against the DP and seeks Ruto's acquittal. The jury is still out on the impact of the multiple political and legal strategies to fight the ICC cases, lawyers argue.

If the ASP agrees that new Rule 68 was not to apply in Kenya's situation or the Appeal Chamber agrees with the defence and the AU, some reckon the prosecution's case will be left clutching at straws. Peter Onyango, an international law expert, argues that the diplomatic manoeuvre by both AU and Kenya might not help the case as they are political moves, but acknowledges a decision by the ASP will weaken the case.

"What is outstanding is that the diplomatic manoeuvre by AU and Kenya might not change the course but ASP's decision to withdraw Rule 68 will weaken the prosecution," Dr Onyango observes.

But a lawyer who was in one of the ICC's defence teams reckons that diplomacy will have an impact as ICC is a creation of these States and thus judges cannot ignore the decision of the assembly.

Waki list

"It will be a mess if the court gets into a fight with the very body that created it," said the lawyer who commented in confidence due to his involvement in the Kenyan case.

"A lot depends on cross-examination and what the defence will do in case the court agrees there is a case to answer. The defence will also front its witnesses who will play a vital role in the success or the failure of the case," adds the lawyer who however, explains that it is difficult to tell if the Waki list was used in the case.

"What I foresee is that the defence may want to get a final determination on the matter from the Appeals Chamber through the African Union or through its application to have the no case to answer motion approved," says international law expert Mokaya Orina.

Mr Orina says as much as the decision to use Rule 68 remains controversial, it could be a setback for the defence who would not get an opportunity to test the evidence through cross-examination if the appeal fails.