Stung with criticism of bias against Deputy President William Ruto, Attorney General (AG) Githu Muigai has moved to redeem his image in the URP wing of the ruling Jubilee coalition.
Earlier this week, Muigai fired another long shot in a bid to get involved in the ongoing appeal over use of prior recorded testimony in the case against Ruto and co-accused Joshua arap Sang.
A similar application on May 27 was swiftly rejected, knocking off the government’s participation in the matter. This later fed into perception that the AG had abandoned Ruto in the jaws of the ICC after saving President Uhuru Kenyatta.
Through the application, Muigai also attempts to undo the damage wrought on the court by politicians disaffected with the August decision which allowed use of prior recorded testimony.
For the first time, the AG admits the role of the government in initiating the ICC process through claims which lends credence to Ruto allies allegations that their man was fixed. Muigai says the Kenyan government supplied the court with evidence and list of suspects way before the judges sanctioned the case.
Longstanding cooperation
“In late 2009, the government of the Republic handed over to the ICC evidence collected by the independent and impartial Commission of Inquiry into Post Election Violence as well as a list of the names of those suspected to have committed crimes within the jurisdiction of the ICC, during the post-election violence (PEV) period,” his application reads.
Muigai talks of a “longstanding cooperation relationship with the Court” from the signing of the treaty in 1999 to the ratification in 2005 and the fact that Kenya “is a fully paid up State Party to the Rome Statute.”
To further appease the judges, he says Kenya is “one of the few but growing number” of countries which have enacted domestic legislation for the Rome Statute.
“The Government of the Republic of Kenya respects the Majority Trial Chamber Decision that was made pursuant to the amended Rule 68 of the ICC Rules, a rule which it actively participated in its negotiation and adoption,” he says
The application is modeled along the one dismissed on May 29 in a ruling delivered by Nigerian judge Chile Eboe-Osuji.
“The Chamber considers that the observations from the Kenyan Government as regards its participation in the negotiation process of the amended Rule 68 of the Rules are neither necessary nor appropriate for the Chamber’s judicial determination on this matter, namely the legal interpretation and application of Rule 68 of the Rules.”
Last month, while issuing the controversial decision allowing use of prior recorded testimony, the judges reiterated their resolve to lock out the Kenyan government’s participation in the matter.
“The Chamber reached this conclusion because it cannot privilege a limited number of States Parties’ views over the collective will of the ASP reflected in the resolution amending Rule 68.”
The trial judges also announced that the overall conclusion based on Assembly of State Parties resolution on Rule 68 amendment is that it can be used in the Ruto case.
On September 10, Trial judges allowed Ruto and Sang to appeal on seven issues among them whether Rule 68 of the Rules can be applied in the case without offending Articles 24(2) and 51(4) of the Rome Statute.
The other six issues are what exactly qualifies as “prior recorded testimony”, whether such testimony can be admitted in its entirety if the witnesses are presumed dead or interfered with and whether the trial court erred in its assessment of various aspects of Rule 68.
In his new application, Githu has picked the first issue as the only one the government wants to assist the court on. “The contested application of the amended Rule 68 of the ICC Rules may have a significant impact on the fundamental human rights of the accused persons who are citizens of the Republic of Kenya,” he says in the application.
Some of the factors which dissuaded the trial judges failure to allow Kenya, however, remain constant. The concern that they could be privileging the view of one member of the ASP over the collective will of the whole assembly still stands.
Even-handed
Muigai is, however, hopeful that the government’s application will be accepted on its own merits. Besides the application, Kenya has written to the ASP itself demanding a discussion on application of the amended Rule 68 at the upcoming assembly meeting. If the application succeeds, Muigai will get the opportunity to demonstrate to the URP side of the government that his office is even-handed in its approach.
If it fails, the flood of criticism against his office’s handling of the case will persist. Most of the government’s interventions in President Kenyatta’s case were accepted largely because they went into the core of state-ICC cooperation.
It is during these in-court sessions that Muigai starred defending the Kenyan state from accusations of non-cooperation. His side won the argument when judges refused to refer Kenya to the ASP for sanctions despite finding instances of non-cooperation.
“There a lot of lies and misconceptions at play here. No one is telling Kenyans that the AG is not a defense counsel for either the President or the Deputy President. The two have very competent legal teams. The AG is defending the Kenyan state and he has done quite well,” a source at AG’s office said.
Meanwhile, legal teams for both Ruto and Sang will have to burn the midnight oil in the next two weeks as they file two key motions which have huge bearing on their cases.
By Monday next week, they ought to have filed their 40 page maximum appeal on use of prior recorded testimony.
By October 23, they ought to have filed their 100 page maximum no-case-to-answer motion.