Kenya stumbles as bid to reverse ICC's Rule 68 goes to ASP bureau

Cabinet Secretary for Defence Raychelle Omamo and her foreign affairs counterpart Amina Mohamed follow proceedings during the official opening of the fourteenth session of the Assembly of State Parties to the Rome Statute at The Hague.
THE HAGUE: The Kenyan delegation stumbled at the first hurdle after it failed to convince the majority of the International Criminal Court (ICC) Assembly of State Parties (ASP) to unanimously support the amendment of Rule 68 which allows the use of recanted evidence.

The Kenyan delegation, led by Foreign Affairs Cabinet Secretary Amina Mohammed, had earlier made a spirited effort to have the ASP meeting at The Hague approve its request to have the controversial rule reversed. But the plenary referred its argument to the 18-member ASP bureau comprised mostly Western countries.

Leader of Majority in the National Assembly Aden Duale, who is part of the delegation, said: “The majority of European countries opposed our agenda. We now know who our friends and enemies are.”

Kenya has demanded that the rule should not be used in the two ICC cases against Deputy President William Ruto and radio presenter Joshua Arap Sang as agreed earlier by the ASP.

Despite the setback, Kenya was given another chance to continue lobbying members of the ASP bureau, who will then look at its proposed text and resolve to reject, adopt or amend its proposal.

The ASP bureau decision will then be brought back to the plenary next week for the final decision by all ASP members present.

Current members of the ASP bureau are Chile, Colombia, Costa Rica, Czech Republic, Germany, Ghana, Hungary, Japan, Netherlands, Nigeria, Republic of Korea, Romania, Samoa, Slovenia, South Africa, Sweden, Uganda and the United Kingdom.

The bureau is the executive working committee of the ASP, comprising the 18 members representing state parties from all regions and continents.

Ms Mohammed and  scores of tough-talking MPs, among them Duale, arrived in The Hague early this week with high hopes and in good spirits promising to push their agenda through.

But after three days of intense lobbying, Ms Mohammed presented a gloomy picture when she addressed the plenary last evening while presenting the Kenyan agenda.

“The space we have here has been shrinking and many of us from Africa are beginning to feel unwanted and frankly a nuisance. It is becoming difficult to feel comfortable and it is as if the Assembly would be better off without us,” read part of her statement.

The enthusiasm and exuberance exhibited by the Kenyan delegation dampened after it emerged that a majority of European nations were opposed to the Kenyan agenda.

Most of those countries insisted that it was dangerous for them to amend Rule 68, because doing so would cripple operations of the court.

As Ms Mohammed, supported by CS Raychelle Omamo and Solicitor General Njee Muturi, presented Kenya’s agenda, civil society activists were busy lobbying hard for its rejection. Canada and Switzerland were among the most vocal countries that opposed Kenya’s agenda, with the latter sating that: “Two years ago the ASP was extremely flexible in addressing Kenya’s concerns, but flexibility has limits”.

Canada also objected, stating that: “it is not the role of the ASP to serve an appeal chamber of ICC and the Prosecutor must therefore be free from interference”.

The Czech Republic also resisted Kenya’s attempts to change Rule 68, arguing that the ASP must be careful not to trespass on ICC’s judicial independence while Uganda supported the presentation by Ms Mohammed, insisting that the ASP had in 2013 affirmed its non-retroactive application. South American countries like Chile also cautioned against ASP getting involved in pending judicial matters likewise to Kenyan civil society organisations.

Earlier, Ms Mohammed made Kenya’s case at the plenary, poking holes into what the civil society and ICC Prosecutor Fatou Bensouda claim are attempts by Kenya and other African states to assault the independence of the court.

“It is somewhat surprising and indeed ironical, therefore that the very organs of the court that successfully drove the agenda for amendment of the rule and have subsequently applied it in a manner that evidently contradicts that ASP legislative intent, now turn around and seek in a letter dated 13th November 2015 to shelter under the sub judice principle to effectively gag the ASP from clarifying that intent,” argued the Foreign Affairs CS.

Kenya wants the reversal of the rule which was adopted in 2013, and subsequently applied in the two cases. The rule allowed for the admission of testimony that was recanted by witnesses in the two cases.

The country is also pushing for the adoption of a petition to audit all witnesses that appeared at the ICC following claims that some of them were coached to give false testimony.

It was a crucial day for the Kenyan agenda, with the ASP being turned into a theatre of debate between the Kenya delegation and civil society organisations on whether the request on Rule 68 should be acceded to. At one point, members of the civil society were forced to remove T-shirts that had messages opposing the Kenyan position.

“What is happening now is political interference with ongoing proceedings on failure to cooperate with the ICC,” said Amnesty International, during a press conference at The Hague before the plenary session.

Gladwell Otieno, the Executive Director of Africog, also issued a statement, accusing the country of launching a scathing campaign against the ICC at home and abroad. Flanked by members of the Coalition for the ICC, Ms Otieno argued that the ICC still remains the most viable avenue through which victims of the post-election violence can access justice. “Kenya continues to employ double-speak where it pledges to cooperate with the court while at the same time actively frustrating it from continued investigation and prosecution of the cases,” read an advocacy brief by the civil society.

Since Wednesday, there has been intense lobbying for the adoption of the Kenyan agenda, and Kenya has threatened to pull out of the Rome Statute if the assembly does not accede to the request.

“Capricious application of Rule 68 undermines the fair trial process,” said Omamo, before making veiled threats on Kenya’s withdrawal. “Are we a burden? Are we adding value or taking up your time?” she asked.

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International Criminal Court (ICC)Assembly of State Parties (ASP)Amina Mohammed