The dismissal of the application seeking the extradition of lawyer Paul Gicheru and colleague Philip Kipkoech Bett to the International Criminal Court is almost the final blow to Prosecutor Fatou Bensouda’s cases in Kenya.
The two lawyers still have a live warrant issued by the ICC on March 10 2015 facing them but questions now abound about how it can be executed.
All eyes are now on The Hague-based court on how it will react to the High Court ruling that dismissed the application and if it will either agree with the judgement, move to the Court of Appeal or censure Kenya again for non-cooperation.
The ICC had accused the two lawyers of witness interference and bribery among other claims of impropriety, which allegedly led to suspects recanting evidence and becoming hostile.
High Court Judge Luke Kimaru, who dismissed a government application seeking to extradite Gicheru and Bett to The Hague, based his ruling on findings that officers attached to the Office of The ICC Prosecutor attempted to coerced and intimidate the lawyers.
Lawyer Paul Gicheru had told the court that the office of the ICC prosecutor made attempts to coerce and intimate him into withdrawing from representing his client who was a key witness in the case against Deputy President William Ruto. The Ruto case collapsed two years ago.
Gicheru told the court that ICC officers visited his office after the court had requested him to stop representing key witnesses who had recanted their evidence. In the affidavit filed at the court, one of the witnesses Samwel Kimeli Kosgey, who Gicheru was allegedly influencing to withdraw, claimed ICC officers promised him an apartment in South Africa or one acre of land in Mbenzi Tanzania so that he could stand by his testimony.
He had swore under oath before Gicheru that he gave false testimony against Ruto because of great hostility from ODM (Ruto’s party at the time) supporters towards him because he was a PNU (President Mwai Kibaki’s party at the time) member.
“As a result I was induced and enticed to be a witness at the ICC on the promise that I would be given accommodation and other monetary inducements. I later moved to Nairobi, Arusha where I was interrogated by Cynthia Tai, Emma and a stenographer who I later learned was from USA at the ICTR offices,” said Kosgey’s affidavit.
After the one month interrogation, he was relocated to Dar-es-Salaam and later to The Netherlands where he resided with his family.
He claimed in the affidavit that he was regularly briefed by former ICC Prosecutor Luis Moreno Ocampo, who dictated to him the nature of evidence he should give.
He was then flown to Kenya on his own request on October 26 2012, where he allegedly after “deep soul searching decided he could no longer stand by statements that were not true.
“I therefore swear and state that I’m withdrawing all and any of the allegations attributed to me,” said Kosgey.
At the High Court, Gicheru argued that it was that affidavit he prepared for his client that put him into trouble with the ICC.
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The judge said the allegations raised by the lawyer were serious and could not be wished away.
Three senior lawyers John Khaminwa, Waweru Gatonye and Kibe Mungai moved to court in 2015 to stop the arrest and extradition of the accused lawyers.
Doing his work
“As far as we are concerned, that matter is now over because the court established that Paul Gicheru was only doing his work as a lawyer who was defending his client,” said Senior Counsel Khaminwa.
Upon receipt of the ICC request, the then Cabinet Secretary, Ministry of Interior and Coordination Joseph Nkaiserry, notified the High Court about the Rome Statute requirements to which Kenya was a signatory and forwarded the accompanying documents for the arrest warrant to be executed.
The government wanted the court to issue arrest warrants, order search of their offices and seizure of any relevant evidence, grant an ICC investigator permission to be present during seizures and order the transfer of evidence to the The Hague-based court.
The respondents lawyers moved to court and demanded that the orders be set aside and after lengthy submission a stay order was issued stopping the arrest of the two lawyers.
In his ruling, Judge Kimaru said: “It was common ground that the acts that constitute the alleged offence against administration of justice occurred within the jurisdictions of the High Court of Kenya.”
“The request for cooperation and arrest, search and surrender of the respondents is challengeable,” said Judge Kimaru.