Confrontation with the ICC counterproductive

The 14th Assembly of State Parties (ASP) which took place in The Hague this November highlighted the challenges facing the process of securing justice for the accused and the direct and indirect victims of the 2007-2008 post-election violence. Despite the fact that the cases are supposed to be personal challenges, the Government has invested heavily, including sending a huge delegation to the 14th ASP. The political pressure against the ICC may not, in the fullness of time, yield the fruits desired by Kenyatta and Ruto.

I address two key arguments: First, the case of Prosecutor v. Ruto and Sang in The Hague is before the International Criminal Court (ICC) and there is no need for political pressure. Kenya's lobbying other Member States on Rule 68 in the ASP has compromised the principle of judicial independence given that this matter is still before the ICC and was to be determined by the Appeals Chamber. What is the state of play and the prospects?

First, Kenya presented two main requests during the just-concluded ASP; first, that the ASP declare that Rule 68 should not be applied retroactively. The second is that there is need to establish a mechanism to audit the Prosecutor's system of identifying witnesses in the case of Ruto and Sang. Kenya's requests were granted on the evening of November 26, 2015, following two referrals to the ASP Bureau amid threats by the Kenyan delegation to withdraw from the Rome Statute. Supporters of Kenyatta and Ruto had even drafted a bill to repeal Kenya's International Crimes Act 2008.

Some have argued, and I concur, that Kenya's continued pressure at the ICC is an unnecessary affront to the authority and dignity of the court. It amounts to sub judice, contempt of court, impunity, and lawlessness. Significantly, Henry Kiprono Kosgey pursued the due process route successfully. Ruto's case has taken a detrimental political angle, a path whose consequences shall be felt in the near and distant future.

It would be proper for the Ruto-Sang case to follow the due process or judicial route for at least two reasons:  First, the Trial Chamber had earlier indicated that the Rule would not be retroactively applied, if it would be to the detriment of the rights of accused persons under Arts 67 and 51(4). The second is that one of the ICC's initial reasons for admitting in evidence recanted statements is that they relied on Article 69 (3) of the Rome Statute which states: "...the Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth."

My second argument is that the Trial Chamber'sruling to admit recanted evidence in Prosecutor v. Ruto and Sang under amended Rule 68 of the Rules of Procedure and Evidence, was in the interest of a broader conception of justice. This genuinely includes the interests of direct and indirect victims. The retroactive application of Rule 68 would have been in accordance with international criminal law in the context of the case against Kenyatta, that was withdrawn, and other related Kenyan cases.

According to Judge Osuji, Rule 68 and Article 69(3) of the Rome Statute empower the Court to admit any evidence it considers relevant to the administration of justice. These provisions are particularly relevant considering the naked or crude political pressure that supporters of Kenyatta and Ruto have exerted on the court and its possible impact on the Prosecution's witnesses who had earlier given their testimony to the ICC. As such, based on Article 69 (3), the ICC can still use the statements of witnesses who had recanted their testimonies. Article 69(3) underscores the utility of the "totality of evidence," even hearsay, including direct and circumstantial evidence as established in transnational and the Kenyan legal processes.

In addition, the resolution of the ASP on Rule 68 shall not necessarily affect the lodged appeal and the Court's powers under Article 119(1) on the settlement of disputes regarding the judicial functions of ICC. Significantly, the role of the ASP is purely legislative. It has no role in final interpretation. It is the role of the ICC to interpret and apply Rule 68 and other provisions accordingly.

In any case, Article 119 of the Rome Statute provides the mechanism to resolve any dispute in the event the accused persons have any complaints in the application of the amended Rule. By suspending the amended Rule 68 seeking its non-application to the Kenyan cases, the ASP has assumed a role of ultimate interpretation and application. This is against due process, the judicial function, separation of powers, checks and balances, and the rule of law.

Given the ASP's decision to grant Kenya's requests on November 26, 2015, Ruto and Sang's futures will be decided largely by how the ICC interprets the Kenyatta's administration's confrontation to the ICC and 'over-politicization' of the case. Ruto must shun the political gymnastics and take leadership in line with due process and the rule of law.