Confusion at International Criminal Court over push to bar recanted evidence in Ruto, Sang cases

Ambassador Amina Mohamed, Cabinet Secretary Ministry of Foreign Affairs and International Trade, Government of Kenya makes her presentation during the 2015 Global Entrepreneurship Summit (GES) Youth and Women Day in Nairobi on July 24th, 2015. PHOTO: ANDREW KILONZI

The Kenyan delegation in The Hague had a few anxious moments in their lobbying as the Assembly of State Parties drew to a close, yesterday.

The anxiety was largely due to conflicting reports from the meeting. At one point, reports indicated that the Government's bid to fight the use of recanted evidence in the case against Deputy President William Ruto and journalist Joshua Sang by the International Criminal Court had collapsed.

Foreign Affairs Cabinet Secretary Amina Mohammed, who led the Government's team during talks on Kenya's proposal on Rule 68 in the 18-member ASP's Bureau committee, indicated that Kenya would contemplate withdrawal from the ICC.

By late evening, the ASP Bureau was still locked in last-minute negotiations to put together a final text of the resolution that would be acceptable to all countries, including Kenya.

Although the final details had not been announced, Senate Majority Leader Kithure Kindiki tweeted: "The Bureau has approved. The final plenary sits in an hour's time to ratify."

On his part, Elgeyo Marakwet Senator Kipchumba Murkomen also tweeted: "The deal is done: The understanding that Kenya believes on Rule 68 has been accepted by the ASP."

However, there was no official word from Ms Mohamed who was leading the Kenyan delegation to the ASP.

Earlier, the final negotiations at the ASP Bureau fell apart after members disagreed sharply on the final text of the resolution, prompting Kenyan officials led by the Cabinet secretary, to storm out of the meeting and threaten to withdraw Kenya from the ICC.

It is reported that European Union members were adamant against attempts by Kenyan officials to tailor the text of the resolution to suit her interests, sparking a deadlock. But Kenyan officials claimed that there was no commitment by some ICC members to address the concerns they raised.

"I registered strong objections to the lack of genuine commitment to address Kenya's concerns," tweeted the Ministry of Foreign Affairs quoting CS Mohammed.

ICC withdrawal

She added: "I indicated that Kenya would have no option in the circumstances other than contemplate a withdrawal."

National Assembly Majority Leader Aden Duale tweeted: "The ASP Bureau has not ruled on Rule 68. We have stood our ground, and the ASP President Sidiki Kaba is trying to end the stalemate.

Mr Kaba was at one point forced to quickly reconvene a meeting of the ASP Bureau to attempt to secure a deal on the texts of the resolution that would be acceptable to Kenya and others.

The deadlock, which lasted hours, delayed the conclusion of the ASP meeting with Kaba being forced to abandon the main plenary for the ASP Bureau meeting to take charge of the negotiations.

Tension was high as Kenyans waited on the final decision of the ASP Bureau to see if the bid by the Government to secure a resolution favourable to Ruto and Mr Sang was successful or not.

The text that Kenya wanted read: "...the assembly...reaffirmed its understanding that the amended Rule 68 shall not be applied retroactively ......"

But the proposed addition that Kenya rejected also included "......or to the detriment of the person who is being investigated or prosecuted."

Kenya argued that the additional text left room for the judges to exercise their discretion, opening the possibility of prejudicing the fairness of trials against Ruto and Sang.

Several informal sessions during the ASP that Kenyan representatives exploited to lobby their cause appeared to have borne no fruit, neither were the painstaking negotiations in the ASP Bureau that was handling the requests by Kenyan officials.

Kenya sought that the use of the recanted evidence not to be applied retroactively in the cases facing Ruto and Sang.

ICC Chief Prosecutor Fatou Bensouda was allowed by ICC trial judges to use prior statements of five witnesses who recanted their evidence in the past, a move that has been strongly opposed by Ruto and Sang as well as the Jubilee government as a miscarriage of justice.

Lawyer Gitobu Imanyara downplayed the threat by Kenya to pull out of the ICC saying the Rome Statute is part of Kenya's Constitution and the Government cannot take Kenya out of the ICC without a referendum.