Gicheru fights move to stop one judge from hearing case

A legal battle is looming between a lawyer who surrendered himself to the International Criminal Court (ICC) and the Office of the Public Counsel for Defence.

Lawyer Paul Gicheru has opposed a move by the OPCD led by Xavier-Jean Keita to appeal against the court’s decision that allowed one judge to hear the case in which he is accused of interfering with the ICC prosecution witnesses.

Through his lawyer Michael Karnavas, Gicheru wants the court to deny OPCD a chance to appeal on grounds that lawyer Philip Bett, who is still on the run, is not party to the case and would not suffer since the single judge’s decision does not preclude further challenges on applicability of the law that requires three judges to hear cases.

In the documents filed at The Hague-based court, Gicheru says OPCD lacks standing in the matter, adding that there is no room for declaratory relief.

Legal provision

Article 82(1)(d) of the Rome Statute provides that a decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.

“However meritorious the OPCD’s arguments may appear in favor of granting interlocutory appeal, the present circumstances provide no other option to the single judge than to deny the OPCD’s request for lack of standing,” he stated.

In the December 10 decision, OPCD is seeking permission from the court to appeal against Judge Reine Adelaide Sophie Alapini-Gansou’s ruling that declared Pre-Trial Chamber A properly constituted.

The judge then separated Gicheru’s case from Bett’s and referred the latter to the Pre-Trial Chamber II that had issued a warrant of arrest in 2015.

Aggrieved by the decision, Keita is now seeking permission to appeal, saying it is only this court that can be seized of his request to appeal.

“There is therefore no other chamber that can be seized of this request except Pre-Trial Chamber A. The OPCD notes that the implication that Pre-Trial Chamber II “shall remain seized” of Mr Bett’s case – suggesting it was always with that chamber and never with Pre-Trial Chamber A – highlights the potential procedural confusion that can be caused by Provisional Rule 165 and its use, which further emphasises the need for the Appeals Chamber’s resolution of the issues presented for appeal,” reads part of the documents filed at the court.

He also states that Pre-Trial Chamber A’s decision on rule 165 of the court cannot be considered final until it is decided by the Appeal Chamber.

The court had been told in November that if rule 165 was valid, it remained inapplicable in the case against Gicheru and Bett because it was amended only after the issuance of warrants of arrest against them, thus barred by the principle of non-retroactivity.