Battle to 'save' Ruto to play out at ICC meeting

President Uhuru Kenyatta and his deputy William Ruto look at a road map during the launch of construction works for the Elula-Elgeyo-Kapkoi road in Elgeyo Marakwet, yesterday. [PHOTO: STANDARD]

An International Criminal Court (ICC) conference opens today with Kenya determined to have key evidence prosecutors are relying on in Deputy President William Ruto's trial disallowed.

Alongside another proposal for an independent audit of prosecution witnesses following claims of coaching, the Kenyan agenda has attracted fierce resistance from the ICC and civil society groups that argue it is interfering with the court's independence.

The 14th session of the Assembly of States Parties (ASP), which runs until November 26 in The Hague, Netherlands, is critical because should Kenya's proposals be upheld, the case against Ruto and his co-accused Joshua Sang would be suspended.

Last evening, reports indicated the Kenyan items had been included in the ASP's agenda for debate.

The high stakes deliberations have seen Jubilee deploy Cabinet secretaries Amina Mohammed (Foreign Affairs) and Raychelle Omamo (Defence), and Attorney General Githu Muigai to lobby support in the two cases, which are at a critical stage in The Hague.

The top Government officials have been holding meetings with dozens of officials in Europe and Africa.

The ASP, which is the ICC's management oversight and legislative body, comprises 123 countries, with majority, 34, being African.

Kenya demands that the ASP provides for the reversal of Rule 68 of the evidence rules, which allowed for the admission of recanted evidence in the two cases, and an audit of all witnesses that appeared at the ICC.

Yesterday, Ms Mohammed reiterated Kenya's position, which has the backing of the African Union.

"We are here to restate that the rule will not be applied in the case against the DP and Sang. We have co-operated with the court and we expect that our concerns will be addressed," said Ms Mohammed, who is leading the Kenyan delegation to The Hague.

Over 25 MPs, led by National Assembly Majority Leader Aden Duale, are expected in The Hague.

staging WALKOUT

Ahead of their departure, Mr Duale told The Standard Kenya would lead other African countries in a walkout from the ICC if its demands are not met by the assembly.

"I can tell you that if the ASP rejects our demands, there will be a mass walkout by all African Union members that support our position. The next alternative will be our withdrawal for the Rome Statute," said Mr Duale.

Pitting Kenya against the Office of the Prosecutor and civil society is whether the application of Rule 68 will be sub judice to the ongoing proceedings in the trial chamber, and how its consideration would impact the independence of the ICC's judicial mechanism.

The Coalition for the International Criminal Court, Amnesty International (AI), Human Rights Watch and International Federation for Human Rights have also said they would not back the Kenyan position.

The reversal of the rule has been opposed by ICC Prosecutor Fatou Bensouda, who asked the ASP not to touch the matter since there was a pending appeal before the chamber.

In a letter written jointly with the President and the registrar of ICC, and addressed to the president of the assembly, Bensouda urged the assembly not to consider Kenya's request.

"It is in this context, that we as the principals of the court jointly urge you, Mr President, and through you, the State Parties to the Rome Statute to ensure that the courts' judicial and prosecutorial independence is not undermined, or perceived to be undermined, by proceedings of the assembly," the letter said.

The Government's bullish posture has also been countermanded by determined efforts by civil society organisations, who want the ASP to uphold the application of the rule in the two cases, arguing that doing otherwise would amount to poking its nose into affairs that are already before a competent judicial mechanism. The civil society organisations will also be represented at the ASP.

Yesterday, the ICC also made its position clear with regard to its expectations at the ASP meeting.

"The court recognises the specific and important role of the ICC. It is important that the State parties, as custodians of the Rome Statute, robustly continue to safeguard the independence of the ICC judicial process," the court said in response to our inquiries on its expectations of the ASP meeting.

Global watchdog Amnesty International warned that a consideration of the Kenyan request would sound the death knell for the independence of the global court.

"To do so would not only betray the hopes of thousands of victims awaiting justice, it would damage the very bedrock of justice - the independence of the court," said Netsanet Belay, AI Africa director, research and advocacy.

"Rule 68 is now a judicial issue and any attempt to discuss it will be sub judice," argued lawyer Harun Ndubi.

The Government intends to argue before the ASP that the rule, which it backed in 2013, could not be applied in the Kenyan cases, as it came into force after their trials had begun.

Solicitor General Njee Muturi, representing the AG in The Hague said: "We have been the most co-operative State the ICC could ever have and all we want is reciprocation."