Setback for Kenyan efforts to debate use of prior testimony at ICC

Kenya’s attempt to open debate on the use of prior recorded testimony in the William Ruto and Joshua arap Sang case at the International Criminal Court suffered a setback last week when the committee responsible for Assembly of States Parties meetings declined to place it on the agenda.   Members of the bureau, the team responsible for drawing up the agenda for the ASP in November this year, opposed Kenya’s September 4 request for a review of the implementation of Rule 68 of the Rome Statute, which was passed in 2013. The 14th ASP will be held at The Hague between November 18 and 26, 2015.   Kenya’s letter was the third this year, following February 2 and May 29 diplomatic notes to the ASP president demanding that Rule 68 be not applied retroactively because of assurances allegedly given during negotiations in 2013. Rule 68, which allows for the use of prior recorded testimony and statements from dead witnesses, was passed as part of compromises made to allow the excusal of ranking State officers from continuous presence at trial.   Sources present at the bureau meeting said members pointed out that there is an ongoing judicial process concerning Rule 68 and that there should be a clear separation between judicial and political issues. ASP President Sidiki Kaba was expected to communicate the decision of the bureau on this matter to the government of Kenya.   Read: ICC Africa relationship dialogue can only happen at the ASP says Sidiki Kaba   In August, the ICC’s Trial Chamber V admitted into evidence testimonies of five prosecution witnesses who had been declared hostile in Ruto-Sang case. The accused have been granted leave to appeal and the Kenya government has applied to participate in the proceedings as a friend of the court.   Separately, the ICC has issued arrest warrants for three Kenyans in connection with witness interference. In August 2013, the ICC unsealed a warrant of arrest against journalist Walter Barasa which remains unexecuted because of legal appeals lodged in Kenyan courts. This year, the ICC unsealed warrants of arrest against lawyer Paul Gicheru and Philip Kipkoech Bett for alleged witness interference. None of the suspects has been presented to the ICC.