We cannot compel witnesses to testify, Kenya tells ICC

By WAHOME THUKU

Kenya: Attorney General Githu Muigai for the second day, explained to the International Criminal Court (ICC) why the Kenyan government could not compel unwilling witnesses to testify.

For the better part of yesterday morning and afternoon sessions, the rest of the Chamber V(a) sat silent as the AG and presiding judge Chile Eboe Osuji engaged in a one-on-one legal discourse on the procedures through which witnesses could be made to appear in court to testify.

Prof Muigai explained in detail the position of the Kenyan law, particularly the International Crimes Act (ICA) on how the government could cooperate with the ICC in assisting witnesses to travel to The Hague to testify.

He explained that his office could only act on requests by the ICC prosecution if the witnesses in Kenya volunteered to give evidence in the two cases facing President Uhuru Kenyatta and his deputy William Ruto.

The judge however questioned the procedure of having the witnesses go to testify, where the law did not expressly bar the government from compelling them. He also put questions to the AG on the position of the Kenyan law regarding the assistance of the government to witnesses willing to testify but not able to travel to the Hague.

The AG, who was attending the second status conference in the Ruto/Sang case after addressing a similar one in the Kenyatta case on Thursday, maintained that the government could only facilitate witnesses who had voluntarily decided to testify. Here are excerpts of the proceedings.

AG: I welcome this opportunity Mr President to make that clarification because it’s fundamental. In the argumentation between the prosecution and the defence I got the impression that summons (for witnesses) was treated as a hostile instrument. It need not be. In criminal process, you can use a summon even to bring to court a friendly witness. You can issue a summons to a volunteer witness, which is enforceable in Kenya.

The summons obligates the Kenya government to facilitate his appearance, to grant him a travel document and such other support as he may require. It’s entirely different where a witness says I do not wish to testify, I do not wish to leave Kenya and I do not wish to be associated with this process. I have never seen the affidavits and don’t need to see them but I think the import of the affidavits is that, that is what the witnesses have said.

JUDGE: The idea of summons is that when you receive that document as a witness, you must go to court whether or not you like it, isn’t that what summons means that you shall appear before the court?

AG: I think that when the court issues a summons it’s expressing the hope that the person to whom the instrument is addressed will comply.

JUDGE: The incidences, they have to comply, it isn’t a voluntary matter for them anymore, once summons has come into the picture.

AG: I would have my difficulties with that. Let’s assume the court sitting at The Hague issues a summons for the President of the United States of America, to appear in a Hague court while he is attending an international conference in The Hague, does it mean the President of the USA is going to appear before that court.

JUDGE: It’s a question of meaning. It doesn’t change the meaning of the word summons. The question is what happens then?

AG: The court will have issued the summons in vain because the President (of the USA) is immunised by the international law, as is the minister, as is the diplomat, as is the person who enjoys immunities. So that I as a Minister of the Kenya government, if I was summoned by the district court here I would send counsel to say, I will not be appearing before that court as it has no jurisdiction over me, I enjoy immunities under the Vienna Convention.

JUDGE: That is the argument you’d have to make in defence in order to stave off the incidence of the summons, isn’t it?

AG: That is why under international law we have an appearance under protest. If the Government of Kenya were to be sued in a court here in The Hague, we would say, we do not recognise the jurisdiction of this court, we have made an appearance under protest.

Under Article 93 of the Treaty, “Where the ICC has made a request for assistance in facilitating the voluntary appearance of a witness, the AG may give authority”.

My first question when I receive this request in whatever form it may come, I will ask myself and my legal advisors, is the person sought by the court appearing voluntarily? The prosecutor tells me no; these persons, not only have they left my protection here at The Hague, they have also gone back to Kenya, and even in Kenya I have spoken to some of them on phone, and they have said never. That is the difficulty I would be facing.

JUDGE: But the idea of voluntary appearance, what does it really mean when its indicated in Article 93 and brought to section 87 of the ICA. Can it mean more than a witness saying, I want to go and testify at The Hague and the government says, ..good for you, thank you…you are on your own. He says… I can’t go and you say…that’s is up to how you get there. Doesn’t Article 93 say, it’s for you to kick something in motion and make sure the witness who wants to come does come? It could also be the witness want to come but, the government might put obstacles on the way. Isn’t that what Article 93 intends to avoid?

AG: I have conceded on that point. Where the witness himself wishes to testify there is a positive duty on the part of the Government of Kenya to facilitate that person to go and testify wherever the forum will be. Even tomorrow when I get back to my office, If I receive from my learned friend the prosecutor a letter saying a witness has indicated he is willing to testify if you provide an avenue for that, my instant response will be…no problem.

But if he wrote to me and said…do you remember the seven witnesses we were discussing; have you found them? And assuming by some miracle I had found them, they had come to my chambers…and all of them had said no they don’t want to testify..then I would write to my colleague and say I am unable to process your request because there is no voluntariness. The International Crimes Act (ICA) of Kenya makes references to voluntariness of witnesses three times.

JUDGE: One can say that the ICA says the only way a witness can appear before the ICC is by voluntariness. Does the ICA say the only assistance that the government may render in relation to a witness is if the appearance if voluntary?

AG: It need not say that

JUDGE: Then can we look at Section 20 of the ICA.

AG: Yes, request for assistance.

JUDGE: What are we to make of this provision? Nothing in the section limits the type of assistance that the ICC may request under the Rome Statute….or prevent the provision of assistance to the ICC otherwise than under this Act…what are we to make of this provision?

AG: This is what a draftsman would use to create a residual jurisdiction. Where The ICC statute of the ICA has made a specific and detailed procedure…

JUDGE: Am I wrong in getting the picture that there is no limit on the type of request the ICC may make? The silence of the ICA does not prevent the government rendering any assistance the ICC may make and if the ICA provides for the procedure, that procedure shall be followed, but if ICA or any other law does not provide the procedure the AG shall make his best effort to act on the request provided it’s not prohibited by the law of Kenya, is that the summary?

AG: I regret am unable to make the same reading. Section 20 of the ICA states in the marginal notes…Request for Assistance…It then sets out a dozen different ways in which Kenya will provide assistance.

Section 87. I shall be required to provide assistance for the voluntary appearance of the witness. That is what has to happen, period. And unless that happens, no residual, no creative construction of the statute can give me or a court in Kenya any authority. I venture to suggest with greatest respect not AG of Kenya, but as counsel admitted to practice before you, neither should this court.

JUDGE: (Reads a previous document filed by the AG). What does it mean when you said the ICC had become part of the Kenyan judicial system?

AG: I told you Mr President that the East African Court of Justice is part of Kenya’s judicial system. It’s available to resolve dispute’s touching on the republic of Kenya. It’s also available in appropriate cases for the resolution… the same way Kenya is part of the International Court of Justice (ICJ) which is part of Kenyan’s judicial system.

 The minute you ratify a Treaty with a judicial component, that component becomes part of your judicial structure.