Did Kenya win or lose battle on use of recanted evidence?

The Kenyan delegation to the Assembly of States Parties (ASP) jets back today with opinion sharply divided as to its actual achievement at The Hague meeting.

Depending on whom you talk to, Kenya won or lost at the ASP meeting dubbed the “final confrontation with the ICC”.

The long and short of the Kenyan mission was to stop the retroactive application of Rule 68 of the Rules of Procedure and Evidence in admitting prior recorded evidence in the case against Deputy President William Ruto.

This could be achieved through a number of options espoused by members of the Kenyan delegation — suspension of the rule, amendment of the rule or explicit reaffirmation that the rules do not apply to the Kenyan cases among others.

After days of alleged painstaking negotiations, none of these options appears to have been succinctly captured in the final report of the ASP in the matter:

“Following the debate on the supplementary items, the Assembly recalled its resolution dated November 27th, 2013 which amended Rule 68, which entered into force on the above date, and consistent with the Rome Statute reaffirmed its understanding that the amended Rule 68 shall not be applied retroactively.”

Government officials and supporters at the meeting have described it as a major victory. Civil society groups as well as the court have however dismissed it as a major flop and victory for justice.

“After a protracted 10- day legal, political and diplomatic struggle by Kenya, the 14th ASP of the ICC has adopted our agenda. We have won the battle but the war rages. We have to bring the remaining two Kenyans home,” declared Senate Majority Leader Kithure Kindiki on Thursday night.

Foreign Affairs Cabinet Secretary Amina Mohamed, who led the Kenyan delegation, said the reaffirmation had provided an “unambiguous clarity to the temporal scope of the application of Rule 68”. She hoped the reaffirmation will receive judicial recognition at the court.

Pro-government activist Ngunjiri Wambugu, who was also at The Hague, announced a breakthrough online: “ASP14 is a wrap ladies and gentlemen.Kenya wins. Thank you Lord.”

A section of human rights activists however had a different interpretation of the import of the ASP reaffirmation of non-retroactivity of Rule 68. They claimed the reaffirmation merely restated the 2013 ASP resolution, which itself, was not necessary as the Rome Statute provides for the same.

“The fact is that Kenya wanted the Rule 68 amended or declared inapplicable to the Ruto case. The fact is that ASP declined Kenya’s request. Only judges can interpret Rule 68,” Prof Makau Mutua tweeted.

No bearing Elizabeth Evenson, a senior international justice counsel at Human Rights Watch, reiterated the insignificance of ASP resolution on the case against Ruto.

She told The Standard on Saturday that the reaffirmation of retroactivity of Rule 68 has no bearing on the ongoing appeal on the same.

“The issue is pending before the ICC’s appeal chamber. Today’s agreement does not change that fact. This is where the issue belonged all along, and that is where it stays. Kenya’s effort to get the Assembly to interfere with the courts decision-making was just the latest in a long effort to discredit the court,” she said.

Kenya Human Rights Commission Executive Director George Kegoro said nothing has changed. “Kenya’s intention was to overturn Rule 68. Kenya did not succeed in doing so, the rule is intact. Rule 68 provides that it can apply retrospectively unless the application will cause injustice to the accused person. That remains the case. The decision on application of Rule 68 remains with the judges,” he told The Standard on Saturday.

International Centre for Policy and Conflict Executive Director Ndung’u Wainaina says nothing changed: “Essentially, the 2015 ASP reaffirmed what had been emphasised by the 2014 ASP on non-retroactivity of Rule 68. It was neither necessary nor relevant as the trial judges have said they did not apply the rule retroactively to the detriment of the accused.”

In the midst of the conflicting presentations from the various groups, Kenyans were yesterday lost at the actual meaning and import of Thursday’s ASP resolution.

In her address to the ASP during the “general debate” on Wednesday last week, Amb Mohammed had stated the overall thrust of Kenyan request which was fleshed out in multiple proposed legal texts circulated around: “Kenya is placing before this Assembly a request that the legislative intent of Rule 68 be discussed and that the decision be taken to reaffirm the non-retroactive application of the rule to situations commenced before the November 27th, 2013.”

The final Kenyan text which was placed before the ASP read: “The assembly reaffirms that the intent of the 12th ASP was that the amendment to Rule 68 would not apply in matters already before the court. Rule 68 was adopted, entered in force and took effect from November 27th, 2013.”

In final address to the ASP on Thursday, Mohamed bemoaned the mutilation of Kenya’s text by removing the specifics relating to Kenya and restating the overall principle of retroactivity: ‘Our position’

“Kenya had initially proposed for adoption by the Assembly comprehensive language, which more completely captured the consensus from two years ago. It is imperative to note that not one State Party has contradicted our position that two years ago, the agreement was that the amendment would not be applied to the Kenyan Situation.”

Still, she celebrated the final text adopted for clarifying that the rule does not apply retroactively to the cases that had commenced before November 2013 “including all those in the Kenyan situation who were under investigation or prosecution at that time”.

But it is the final paragraphs of Mohamed’s “closing intervention” which betrayed the feeling among the Kenyan delegation on the final report. She expressed “extreme frustration and displeasure” to the manner some state parties perceived Kenya’s requests.

“To start with, there was no resolution on the application of Rule 68. The final report of the ASP only reaffirmed what is already in the statute. Kenya lost every attempt to suspend Rule 68,” lawyer Gitobu Imanyara told The Standard on Saturday.