Fresh fears over renewal of ICC cases amid 2022 politics

Revelations that the International Criminal Court (ICC) is still pursuing the Kenyan cases has stoked fresh fears within Deputy President William Ruto’s political camp as his 2022 juggernaut gathers momentum.

At the heart of the fears is ICC prosecution’s determined pursuit of witness tampering cases as their saving grace following collapse of the main cases against Ruto and President Uhuru Kenyatta a few years ago.

In its latest report to the United Nations, ICC says in the last one year, it has received evidence relating to the two main cases but also continued investigating the witness tampering cases relating to three Kenyans -- Walter Barasa, Paul Gicheru and Philip Kipkoech Bett.

“The Office of the Prosecutor continued to receive information on the alleged commission of crimes against humanity during the post-election violence of 2007–08, and to investigate alleged instances of offences against the administration of justice, in accordance with Article 70 of the Rome Statute,” the Court said.

It also listed the three Kenyans among their bulging list of 15 people they want surrendered to them for prosecution. They include Sudan’s President Omar Al Bashir, Ugandan rebel leader Joseph Kony, ex-Ivory Coast First Lady Simone Gbagbo and Libyan strongman Muamar Gaddafi’s son Said Al-Islam among others.

Off the hook

When they got Uhuru and Ruto off the hook, ICC judges were categorical that they did not indefinitely close the option of the prosecution rejigging the cases once evidence is obtained.

“They have no inclination to go down that street again,” Israeli lawyer Nick Kaufman, who also practises at the court, told the Sunday Standard yesterday.

Kaufman, a former prosecutor himself, believes that the matter of the court revisiting Ruto’s case may been blown out of proportion by his detractors. “Unless they can link Ruto to an attempt to corrupt his own case, in which case, they might be very receptive to new evidence,” Kaufman added a caution.

Ugandan activist David Matsanga is probably the foremost critic of The Hague based court earning himself a gadfly status. He told Sunday Standard that all his attempts to convince Kenyan authorities to seal loopholes against ICC comeback have fallen on deaf ears.

“I have been telling them to quit the court altogether so that any re-entry will have to be through the UN Security Council resolution, in which case Russia or China will veto the move. Now the chickens are coming home to roost,” Matsanga said.

According to Matsanga, his lone battle to de-legitimise the Waki Commission report and its envelope should have been supported by Kenyan authorities so that even if ICC were to revitalise the cases, they would collapse automatically.

“As long as the basis for this case remains, and it is Waki Report, the threat will always loom. I am pushing on with my case to declare the envelope and the report null and void. If they want, they can join me,” Matsanga claimed.

In the UN report, the ICC said it had transmitted more than 100 requests for cooperation to state parties, states and organisations with regard to ongoing investigations.

The ICC prosecution had also addressed 556 requests for assistance of their investigative and prosecutorial activities to more than 58 partners including states and organisations.

“States provided, through the Registry, assistance to defence teams in support of their investigative activities, including by giving access to documents and other information,” the report says.

Since the specifics of the requests or assistance are not provided in the report, it is not possible to know if Kenya has lent hand or received any request from the ICC since the collapse of the cases.

The court said although it appreciates help granted by states thus far, it looks up to states to do their duty in surrendering suspects wanted by the court.

Earlier this year, the leadership of the ICC judges gave the biggest hint that they were not yet done and dusted with the Kenyan cases. They dissolved the previous chambers which tried the cases but transmitted the full record of proceedings to new chambers.

Should their cases bounce back, they would be heard by Trial Chamber IV presided over by judges Robert Fremr, Reine Alapini and Kimberly Prost.

Sufficient evidence

Before the withdrawal of Uhuru case in March 2015, the prosecutor asked the judges to be allowed to bring the case up at a later date on same or similar factual circumstances but with sufficient evidence.

Although the judges gave defense and victims representatives to challenge this possibility, neither took it up. The victims lawyer only called on Kenyan government to continue efforts to hold accountable those responsible for post-election violence crimes and stressed need for assistance of victims.

“The defence team for Mr Kenyatta did not file a response,” the judges said.

Consequently, the Judges proceeded to grant the prosecution its request with another rider: “However, pursuant to Article 70 of the Statute, it is noted that the Court retains jurisdiction over any interference with a witness or with the collection of evidence.”