International Criminal Court prosecutor Fatou Bensouda has told the Netherlands-based court that orders obtained by lawyer Paul Gicheru from the High Court in Kenya quashing an arrest warrant are now spent.
Ms Bensouda was replying to an argument by Attorney General Kihara Kariuki that Mr Gicheru's surrender went against the Kenyan court's decision that protected him against seizure.
Mr Kariuki has said it will be difficult to cooperate with the ICC in the event Gicheru is given conditional release because he slipped out of the country without informing the government.
But Bensouda argues that the lawyer’s decision to give himself up should not hinder the government from assisting him to travel to and from The Hague and argue his case.
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The ICC had issued an arrest warrant against Gicheru and Philip Kipkoech Bett in 2015 on charges of obstructing the course of justice by influencing witnesses who were lined up to give evidence against Deputy President William Ruto and Joshua arap Sang.
According to Bensouda, Justice Luka Kimaru–who invalidated the warrant of arrest–erroneously ruled that the ICC had failed to seek the views of Kenyan authorities before issuing the orders. Gicheru's offences, Bensouda said, were not against a State party but against the administration of justice, hence Kenya was not a party to the proceedings.
Bensouda says the court can decide to issue a fresh warrant to settle the issue of court orders in Kenya, and that the Netherlands can issue him with a temporary-stay visa to allow him to prosecute the case.
Gicheru had told the High Court that he had dealt with one of the alleged ICC witnesses but in his capacity as a lawyer. He argued that the warrant of arrest issued against him was spurred by vengeance stemming from his unwillingness to cooperate with ICC investigators and prosecutors in connection with the withdrawal of Samuel Kimeli Kosgei as a witness in one of the court's case.
"The first respondent being a respectable and able advocate... criminal charges made against him should not be taken lightly. There was an advocate-client relationship between him and his client who had initially made a complaint to the ICC before seeking his services. There was no evidence of misconduct by the first respondent in representing his client,” his lawyer John Khaminwa had argued.
Mr Kimeli told the court Gicheru had prepared an affidavit on his behalf to recant all the evidence he had offered to the Office of the Prosecutor (OTP). He testified that the prosecutor tried to convince him to change his position but he declined.
Gicheru argued that had he acted in contravention of his duty as an advocate, he may have been found culpable of criminal conduct.
Mr Bett also testified that he had no means or money to influence anyone. He said that he was running errands when he was informed that the ICC was after him.
After hearing the parties, Justice Kimaru lifted the warrant on December 16, 2017, noting that then Interior Cabinet Secretary Joseph Nkaissery and the ICC had not complied with the Kenyan Constitution, the International Crimes Act, and the Rome Statute.
The judge said at the time the ICC was issuing the arrest warrant, the OTP was still investigating the claims and had not supplied the two with evidence as required by law.