Kenya looks up to State Parties against Bensouda's 'twin assault'

ICC Chief Prosecutor Fatou Bensouda. [PHOTO:FILE/STANDARD]

Kenya has pinned its hopes on the upcoming Assembly of State Parties meeting to fight off the International Criminal Court (ICC) as the case against Deputy President William Ruto enters the penultimate stage.

A quick succession of events at the ICC this week set the stage for a final confrontation between the court, the Kenyan state and individuals accused of various crimes.

The court allowed Ruto and his co-accused, Joshua Sang, to appeal the controversial decision allowing use of prior-recorded testimonies on the same day Chief Prosecutor Fatou Bensouda announced she had concluded her case against the pair.

On the same day, the court announced that it had caused the arrest of two Kenyans over witness interference. Essentially, the court has opened a fresh case involving Kenyans. It also denied a fifth Kenyan, Walter Barasa, a chance to conditionally surrender himself to the court.

A day before all these happenings, Bensouda gave a notice that she may increase the scope upon which Sang was charged. She wants to add two new modes of criminal liability to the existing one. She gave a similar notice in respect to Ruto on December 12, 2013.

“It’s a twin assault from the judicial arm of the court on the prosecution, and all coming at the penultimate stage of the case. The judges allowed prior-recorded testimony contrary to all known rules, and now the prosecution has filed a prejudicial and anticipatory application to change Sang’s case,” a Nairobi-based lawyer who has been following the cases told The Standard on Sunday.

Ruto and Sang’s lawyers are said to be preparing to file a no-case-to-answer motion, which requires judges trying a case to render a full or partial judgment of acquittal. The philosophy behind it is that an accused need not be called to answer charges when evidence adduced thus far is substantively insufficient to warrant this.

On the political front, Kenya is looking to the upcoming ASP to fight off the use of Rule 68 of the Rules of Procedure and Evidence to revive what ICC critics have called a ‘dead case’. Last week, Kenya gave a notice to the ASP President that the country would push for discussion on the matter.

“Kenya proposes that during the forthcoming assembly, state parties review the implementation of the amended Rule 68 as a thorough analysis shall ensure that the interpretation and implementation of this and other amended rules do not go against the statue, basic tenets of law and practice, and wishes of the assembly whilst setting the attendant negative precedents in this regard,” Kenya wrote.

A flurry of letters obtained by The Standard on Sunday with regard to the application of Rule 68 paint a picture of a country spoiling for a diplomatic fight at the ASP. Kenya started fighting off application of Rule 68 from as early as February this year.

One letter, dated February, 2 told ASP President Sidiki Kaba that the Prosecutor was seeking to use the amended rule contrary to assurances that it will not be deployed against the Kenyans.

“As the President of the Assembly, take all necessary steps to ensure that the norms and practices of negotiations of multilateral instruments are adhered to and that the sanctity of consensus is respected by all,” said the letter by Kenya’s Permanent Mission in New York.

On May 29, the Mission wrote again to the President of the ASP after Kenya was denied the opportunity to make submissions on the Prosecutor’s application to use Rule 68 in the Ruto case. In the letter, Kenya termed the actions of the prosecution as “unconscionable”.

During prayers held in Rift Valley last week, senior Jubilee coalition officials vowed to fight the court and its cases against Kenyans in all places. “We will fight the case in the land, sea, air, in the forest and deserts,” Senate Majority Leader Kithure Kindiki declared.

According to the criterion issued by the judges on filing of no-case-answer motions, each charge will be considered separately. Ruto and Sang are facing three identical charges of crimes against humanity — murder, deportation or forcible transfer of populations and persecution.

They are, however, under different modes of liability. Ruto is charged under ‘indirect co-perpetrator’ mode of criminal liability while Sang is charged under ‘having otherwise contributed’.

Legal experts now say Thursday’s notice to re-characterise the mode of liability for Sang further complicates the filing of the no-case-to-answer motion. It means that Ruto and Sang would have to disapprove of all the modes of liability they are charged under or likely to be charged under should the prosecutor reframe their cases.

The judges have in the past asked Ruto and Sang to “carefully consider whether or not a no-case-to-answer motion is warranted in the circumstances”. They said they should not base their arguments on credibility issues that have dogged their cases.