Bensouda sides with Kenyan facing trial
By Everlyne Kwamboka | December 23rd 2020
Prosecutor Fatou Bensouda has taken sides with a Kenyan lawyer facing charges before the International Criminal Court in opposing tactics being used to appeal against one judge hearing his case.
The International Criminal Court (ICC) prosecutor said the Office of Public Counsel for the Defence (OPCD) lacks the status to seek permission from Pre-Trial Chamber A to appeal against the decision that dismissed claims that the chamber was not properly constituted to hear the case against lawyer Paul Gicheru.
Bensouda further told the OPCD, led by Xavier-Jean Keita, that he has not received instructions from Philip Kipkoech Bett, who is a fugitive, to represent him at the court sitting at The Hague, Netherlands.
“OPCD is not counsel for Mr Bett, nor in any event is Mr Bett entitled to participate in this kind of litigation until he is arrested or he surrenders. Maintaining this orthodoxy affords no prejudice to Mr Bett, who will be fully able to litigate such matters as he wishes when he appears before the court,” Bensouda stated in her response filed before the court.
It is the prosecution’s case that OPCD was allowed by Judge Reine Adelaide Sophie Alapin-Gansou to file observations the way an amicus curie (friend of the court) can but it does not make him a party to litigation.
She said Keita was granted a limited right of intervention but not a party to the case against Gicheru, adding that there was never any suggestion that OPCD was granted an independent role in the proceedings, akin to the prosecution or the defence.
She said if and when Bett appears before the court, he will be able to litigate all the matters pertinent to his defence, including, if necessary, the application of provisional Rule 165 in the proceedings against him.
It is her case that the decision to have one judge instead of three to handle the case against Gicheru is only binding to this matter and allowing Keita to appeal would only derail the matter.
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“In circumstances where both the prosecution and defence agree with the correctness of the decision, there is little forensic interest in pursuing an academic appeal at the instance of a third party. The parties’ limited resources will be better served by focusing on the issues necessary for expeditious resolution of the pending confirmation proceedings,” she added.
Bensouda said this in an application in which Keita is seeking to appeal against Alapin-Gansou’s decision that her chamber is properly constituted to hear the case against Gicheru.
Keita had in November challenged how the chamber was constituted on the grounds that confirmation of charges must be concurred with by majority of its three judges.
He said reducing the number of sitting judges at each level of Article 70 proceedings on administration of justice is contrary to the ICC’s Rome Statute.
Keita said the division’s president had used a provision of the rule that does not exist to appoint Judge Alapini-Gansou instead of three to hear the case, adding that this is because member states did not adopt or reject the rule.
The Pre-Trial Chamber A allowed OPCD to make its submissions on the issue of one judge appointed to hear the case on the grounds that it was out to protect the rights of Bett and any potential suspects who would be charged with interfering with administration of justice.
However, the Pre-Trial Chamber affirmed that it is validly constituted according to Rule 165, which remains in force until such a time as it is adopted, amended or rejected by the Assembly of State Parties.
Aggrieved by the decision, OPCD is now seeking permission from the Pre-Trial Chamber A to appeal, saying it is only this court that can be seized of his request to appeal despite having separated Gicheru’s case from Bett’s.
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