Attorney General Prof Githu Muigai
The Government now wants the International Criminal Court (ICC) to reverse a decision that requires it to compel witnesses to testify in the trial of Deputy President William Ruto and journalist Joshua Sang.
Attorney General Prof Githu Muigai said the Trial-Chamber V(a)'s decision is contrary to the International Crimes Act (ICA).
Meanwhile, the Government and the ICC Prosecution are expected to update the court by the end of today on the progress made in disclosing President Uhuru Kenyatta's financial accounts.
The Trial Chamber V(b) ruled in May that the update reports be filed every two months from April 30. A status conference is also scheduled for July 9 when the parties are to meet and raise arising issues. The commencement of the case was in March and adjourned to October 7.
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In the Ruto case, the AG submitted that though the Government accepted an obligation to co-operate with the court in serving the summons on witnesses, the Chamber erred in determining that the Government should compel testimonies.
“The Government has indicated that it is prepared to serve the witness summonses. However, the Government contests that given the relevant legal framework it is under no obligation to enforce the summons," said the AG.
These are witnesses who withdrew from the proceedings, some accused of having lied in their testimonies and trying to extort money from the defence and others accusing the prosecution of misconduct in investigations.
The Trial Chamber had ruled that the Government must serve them with the summonses and then compel them to testify either in Kenya or from elsewhere through video link.
But Ruto and Sang have appealed the decision and the Appeals Chamber allowed the Government's submissions.
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Prof Muigai said the decision of the Trial Chamber contradicted the clear wordings of the ICA which domesticated the Rome Statute.
“It is contrary to the plain language of the Kenyan Constitution and would unfairly impose a criminal sanction on witnesses who thought they were participating in a voluntary process,” he added.
Muigai said the decision was contrary to the Rome Statute and controverted the understanding of other member States that had ratified the statute.
The AG pointed out that the Trial Chamber had under-looked the ICA and focused on the fact that the Rome Statute has direct force of law in Kenya.
He argued the Kenyan Constitution remains the supreme law under which other laws fall pointing out that the Government is limited to what is provided in the ICA.
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The AG said the procedure of summoning witnesses under the ICA did not include punishment of those who failed to honour the summonses. Ruto's case has been adjourned to July 10 when the next witness will be available to testify.