Government demands local trial for three Kenyans wanted by ICC

Attorney General Githu Muigai [photo: George Njunge/Standard]

The Government is headed for another confrontation with the International Criminal Court (ICC) after the collapse of cases filed against six Kenyans.

The State’s chief legal adviser yesterday dropped the bombshell that three Kenyans accused of tampering with ICC witnesses would be prosecuted in Kenyan courts.

After the case against Deputy President William Ruto and journalist Joshua Arap Sang was dropped, President Uhuru Kenyatta declared last week that no other Kenyan would ever face The Hague-based court.

And now, Attorney General Githu Muigai has said the charges against Walter Barasa, Paul Gicheru and Philip Kipkoech Bett were crimes that fall within the country’s justice jurisdiction.

The Government has thus demanded that ICC hands over the investigation files and evidence in its possession so that Kenyan authorities can prosecute the cases locally.

“It is the Government of Kenya’s position that the charges against the three suspects are of crimes that fall within Kenya’s normal criminal justice jurisdiction, and can thus be effectively prosecuted and adjudicated domestically,” said Prof Muigai.

His statement echoed that of the President, who declared on April 16 in Nakuru during Jubilee’s prayer rally following the collapse of the Ruto-Sang case that his Government would not allow any other Kenyan to be tried at a foreign court.

“As a country, we have closed the ICC chapter,” he said.

According to the ICC, the three Kenyans are criminally responsible for “corruptly or attempting to corruptly influence ICC witnesses”.

The AG argued that the country reserves its right under the Rome Statute to demand respect for the principle of complementarity. It stipulates that the “ICC does not replace national criminal justice systems, rather, it complements them.”

Advanced stage

The AG said the engagement between Kenya and the court over the matter was at an “advanced stage”.

“...without prejudice to the ongoing cases, (Kenya) shall be engaging the ICC in seeking the handover of the investigation files, evidence and requisite information to support the preferring of charges and subsequent prosecution of the three accused locally,” he said during a press conference in Nairobi.

Although the AG said “the country is absolutely able to deal with the cases”, prosecuting them may be a precarious task, since it could make references to the case against Ruto and Sang, which were terminated by ICC judges earlier this month.

The trial judges cited witness interference in the termination of the cases. A day after the ruling, ICC Prosecutor Fatou Bensouda said the judges’ decision noted the accused, Ruto and Sang, profited from such interference in the administration of justice.

“I call on Kenyan authorities to fulfil their obligations under the Rome Statute and surrender these three suspects without further delay so their guilt or innocence of the charges against them may be independently and impartially determined in a trial,” Ms Bensouda said in a statement on April 4.

But Muigai said since the ICC had finalised the cases against the six Kenyans initially charged over the 2007-8 post-election violence, it would only be fair for the country to prosecute the remaining cases since its courts are primary to the ICC.