ICC: Bensouda and Gicheru lose bid to stop appeal

Efforts by Prosecutor Fatou Bensouda and a Kenyan accused before the international court to stop tactics being used to appeal against one judge hearing the case have been thwarted.

The International Criminal Court (ICC) allowed the Office of Public Counsel for the Defence (OPCD) to challenge the decision on one judge instead of three hearing a case at pre-trial stage, since it constitutes a significant precedent for any future proceedings to be conducted on this basis.

Judge Reine Adelaide Sophie Alapin-Gansou told Bensouda and Lawyer Paul Gicheru that OPCD has standing due to its mandate to protect the rights of any other potential suspects in the case in which Gicheru is charged in connection with interfering with the prosecution’s witnesses.

Pre-Trial Chamber A pointed out that the decision on one judge to hear Gicheru’s case marks the first time that proceedings concerning offences under article 70 on administration of justice will be conducted on the basis of Provisional Rule 165.

“This procedural basis has not been previously reviewed by the Appeals Chamber. In the event that the Provisional Rule 165 decision would not be susceptible to leave to appeal, the very basis of these

proceedings could only undergo appellate scrutiny if the chamber would confirm the charges and once a decision under article 74 of the Statute and rule 165(2) of the Rules is rendered by a Trial Chamber,” reads part of the ruling by Judge Alapin-Gansou.This will now see OPCD led by Mr Xavier-Jean Keita appeal on whether Rule 165 remains in force until such a time as it is adopted, amended or rejected by the Assembly Parties and the rule has not been applied retroactively in view of the fact that the initial appearance of MrGicheru constituted a new stage in the proceedings.

He is to also appeal on whether the rule is not incompatible with the Statute as the statute on administration of justice permits that the principles and procedures governing the court’s exercise of jurisdiction over offence such as the one Gicheru is charged with.

The judge said an authoritative ruling by the Appeals Chamber will avert the need for further litigation on this matter and will, thus, contribute to the expeditious conduct of such proceedings.

“This will provide legal certainty as to the legal framework of such proceedings and will avoid the need to divert resources to this question in the context of fast-paced proceedings. The Chamber is not persuaded by the argument of the prosecutor that granting leave to appeal will delay the proceedings to the detriment of Mr Gicheru. The schedule for the confirmation of charges procedure, which will be conducted on the basis of written submissions, leaves sufficient time to the Appeals Chamber to issue its judgment,” she ruled.

In any event, the judge pointed out that the Chamber is responsible for the fair conduct of the proceedings regarding Mr Gicheru and considers that the possibility of a limited delay cannot trump the need to ensure legal certainty in respect of the very basis of these proceedings.

She said this in the application in which Keita sought permission from the court to appeal against its decision allowing only one judge instead of three to hear the case against Gicheru and whether the rule not passed or rejected by member states can be used in the matter.

It is in this case that Bensouda and Gicheru ganged up to dismiss the OPCD that it has no powers to appeal in a matter in which it is not party to.

Bensouda had argued that OPCD has not received instructions from Bett who is a fugitive, to represent him at the court sitting at The Hague, Netherlands.

“OPCD is not counsel for Mr Bett, nor in any event is Mr Bett entitled to participate in this kind of litigation until he is arrested or he surrenders. Maintaining this orthodoxy affords no prejudice to Mr Bett, who will be fully able to litigate such matters as he wishes when he appears before the Court,” Bensouda stated in her response filed before the court.