Joshua arap Sang opposes application for blanket private sessions

Radio journalist Joshua Sang boards a bus after Wednesday’s proceedings. [PHOTO: PIUS CHERUIYOT]

The Hague

During Wednesday’s proceedings, Katwa Kigen representing Mr Joshua Sang also opposed the application to have blanket protection measures for all witnesses to have them testify in private. Here are part of his submissions:

KATWA: In determining protective measures, individual situations should be dealt with rather than a uniform and general approach to it. We place our reliance on the Provisions of Articles 66, 67 and Regulation 20 which create the primary position that trials are to be conducted in the open. Mr Sang would like to have the proceedings conducted in the open. We also rely on Article 68 that where necessary, and where all other options have been exhausted, that is when protective measures should be called upon. It’s our position that protective measures in deserving cases should be put in place. However to adopt a uniform position like the prosecution is suggesting would amount to rewriting the law. If it were to be determined that all the witnesses are to enjoy protective measures, then the obligation placed on the Chamber in the provisions of Article 68(1) will not be applied. My President Your Honour, we insist that the invitation that the prosecution has made to take a generalised approach and give protective measures to all the witnesses, is inconsistent with the provisions of the law and would border on asking you to rewrite the law. The event that the prosecution is concerned about (withdrawal) and has asked you to cure applying a blanket decision has not occurred.

JUDGE: (Probes Mr Kigen further on the motion and the need by Kenya to withdraw from the Rome Statute passed by the Senate and the National Assembly)Is there any other State Party to your knowledge who have passed a motion in Parliament to withdraw?

KATWA: I’m not aware Mr President.

Judge: If there is to your knowledge no other State Party who has withdrawn, question arise why this particular State party and its Parliament are making a motion to withdraw if it has nothing to do with the on-going cases of having three Kenyans facing charges at The Hague.

KATWA: As I said, I do not want to seem to speak for and on behalf of the Senate but I seem to see an answer in the comments made by one Senator Murkomen, where he expresses concern that the prosecution did not conduct proper investigations.

JUDGE: There is also an indication of faith in the judges so that if there is shoddy investigation the judges would do what would be appropriate at the end of the day, would that not be the case?

KATWA: Absolutely Mr President. (Quotes Senator Ongoro’s contribution to the motion). A resolution was eventually made by the Senate as a corporate decision and the first resolution was to continue to cooperate with the ICC with regard to the ongoing cases, in accordance with the International Crimes Act. There was a commitment to cooperate. There is confidence in this court, but by the time you get to the point of the judgment you will have been dragged through mud, actually through the sewage. We are waiting for the right opportunity to demonstrate that the case can only have been organised by the prosecution and probably non-governmental organisations - the planning was not a planning of violence and the witnesses are lying.

Compiled by Wahome Thuku