AU seeks to be enjoined in Ruto ICC case

A pending arrest warrant for Sudanese President Omar al-Bashir from the International Criminal Court (ICC) overshadowed the African Union (AU) summit in South Africa where leaders were yesterday poised to back a resolution on him and Kenya's Deputy President William Ruto.

Both Ruto and Bashir are accused of crimes against humanity, but while Kenya has co-operated with the ICC with the DP's trial ongoing, Bashir has dismissed the allegations against him related to atrocities committed in the Darfur conflict.

Ruto, who has maintained that he is innocent, is being tried alongside former radio journalist Joshua Sang over the 2008 post-election violence.

Disowned testimony

Although Ruto's trial was not initially on the agenda of the 25th AU Summit in South Africa, the Kenyan delegation successfully pushed for its inclusion in talks on Saturday evening involving ministers tasked with determining the issues to be submitted to the Assembly for decision.

The Executive Council adopted the motion for the AU Commission to be enjoined in the application in which ICC prosecutor Fatou Bensouda wants to be allowed to rely on prior recorded testimony of witnesses who have died, disowned their testimony or refused to testify in court.

"The Council requests that the AU Commission be enjoined in the Application by the ICC Prosecutor under Rule 68 against the Deputy President of the Republic of Kenya as an interested party for purposes of placing before the court all the relevant material arising out of the negotiations," reads a document from the Assembly.

The recommendation, alongside the restated AU position that the case against Ruto should be terminated and proceedings against Bashir suspended, will be placed before the Heads of States and governments who were expected to adopt it last night or today when the summit closes. President Uhuru Kenyatta is in attendance.

On Saturday evening, the Council also resolved to ask the AU Commission to write to the United Nations Security Council (UNSC) to press for implementation of the decision by AU Heads of States and Government calling for termination of the cases against the Kenyan and Sudanese leaders. The Commission will also inform the UN that the Committee of Ministers of Foreign Affairs intend to meet the UNSC to discuss and follow up on the matter.

Bensouda, who has had difficulties getting witnesses to testify against Ruto and his co-accused Joshua Sang, has applied to the court to be allowed to use recanted witness statements admitted as evidence in the case.

Rule 68 of the Rules of Evidence amended during the 12th session of the Assembly of State Parties in November 2013 allows the ICC to admit into evidence prior statements recorded by witnesses who are not available or are unwilling to testify for one reason or another.

But the Kenyan delegation has petitioned the AU to object to the application of the ICC rule that both the Government and the defence teams argue was amended subject to the condition that it would not be applied retrospectively.

At the time the rule was amended the Kenyan delegation was opposed to it, but gave in to allow passage of the key amendment pushed by the Kenya government and the AU that allowed Uhuru and Ruto to be excused from being physically present at The Hague during trial.