The Kenyan mission to the United Nations (UN) has written a protest note to the International Criminal Court (ICC) registering its disillusionment with the use of recanted evidence in the Kenyan case.
The mission took issue with the court’s decision to allow Chief Prosecutor Fatou Bensouda to use as evidence prior recorded statements of five witnesses in the case against Deputy President William Ruto and radio journalist Joshua Sang.
In a letter seen by The Standard on Saturday dated August 25, to the Presidents of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Sidiki Kaba and Justice Silvia Alejandra Fernández de Gurmendi respectively, the mission faulted the court’s decision to admit statements of the concerned witnesses.
The government is particularly concerned with the amendments made on Rule 68 of the Rules of Procedure and Evidence by the Assembly of States Parties in November 2013 and the timing of its adoption.
“The position taken by both the Court and the Office of the Prosecutor is therefore most regrettable, and, in our assessment improper,“ stated the latter.
It reads further: “Kenya acknowledges the unfettered competence of the Court to receive and adjudicate all requests. However, with the greatest respect to the Court, we wonder why the Court would take this course of action when it is surely aware of the understanding and decisions of the Assembly”.
The government affirmed that the legal and moral hazard of such action(s) ought to be self-evident as it undermines the legislative oversight of the Assembly.
The government also argues that application of Rule 68 is dangerous and will infringe on the rights of the accused contrary to the constitution of Kenya and Article 67 of the Statute.
“The Office of the Prosecutor (OTP) relied on Rule 68 of the Rules of Procedure and Evidence as amended by the Assembly of States Parties in November 2013. Trial Chamber V (a) rendered, by majority, the aforementioned decision,” reads part of the protest note.
The permanent mission reiterates that records of proceedings before the court indicate that the amendments to Rule 68 should not be applied retroactively.
Dissenting voices
“In the course of the negotiations in the Working Group on Amendments during the 12th Session of the Assembly of States Parties (the Assembly), Kenya was duly assured, through consensus reached by State Parties, that the proposed amendments to Rule 68 shall not be applied retroactively.
It added: “Moreover, specifically and crucially, Kenya was expressly informed that there would be no attempt to apply the amended rule 68 in the trials underway before the Court and more particularly so, in the trials relating to the Situation in the Republic of Kenya.”
Further the mission emphasised: “It is with this understanding that the Assembly adopted the amendments to Rule 68.”
The government’s actions come at the tail end of dissenting concerns from a section of Rift Valley leaders who have accused the Jubilee administration of doing little to end the two Kenyan cases.
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They leaders have organised a prayer meeting in Kuresoi North constituency this weekend for the DP and Sang.
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