By Janet Sankale
Judge Miatta Maria Samba will continue hearing the case against Kenyan lawyer Paul Gicheru after the plenary of judges of the International Criminal Court unanimously dismissed his application to have her disqualified from Trial Chamber III.
Fifteen of the ICC’s 18 judges attended the plenary session of October 19, 2021 and turned down the request. They informed the parties of their decision the following day and said the reasons for their ruling would be released later.
Judges Piotr Hofmański, Luz del Carmen Ibáñez Carranza, Antoine Kesia-Mbe Mindua, Marc Perrin de Brichambaut, Péter Kovács, Chang-ho Chung, Solomy Balungi Bossa, Tomoko Akane, Reine Alapini-Gansou, Kimberly Prost, Rosario Salvatore Aitala, Joanna Korner, Gocha Lordkipanidze, Sergio Gerardo Ugalde Gordínez, and Althea Violet Alexis-Windsor attended the session. Judges Bertram Schmitt, María del Socorro Flores Liera, and Samba did not attend.
Gicheru, through his lawyer Michael Karnavas, had on September 17, 2021 filed an application before the Registry seeking to have Judge Samba disqualified, citing her previous position as an Office of the Prosecutor (OTP) field operations officer.
He argued that Judge Samba cannot be fair in handling the case, given her previous involvement in the Kenyan situation as a field operations officer (FOO) for the Office of the Prosecutor, and asked the court’s President, Judge Hofmanski, to appoint another judge.
In the November 1, 2021 filing detailing the reasons for their decision, the judges observed that the application relies on circumstantial facts connected to Judge Samba’s role of OTP FOO between 2006 and 2010. They recalled certain facts concerning the case, namely that the arrest warrant against Gicheru was issued on March 10, 2015, and the offences for which the charges against him have been confirmed pertain to alleged actions between April 2013 and September 10, 2015. They said it was temporally impossible that Judge Samba’s work as an FOO could have led her to form an opinion on the case, which at the time of her tenure at OTP did not exist.
They said they consider the case Gicheru has presented “purely circumstantial” and “substantively lacking”, but found Judge Samba’s explanation, which was supported by the OTP, convincing. The judge had said the functions she performed as a field operations officer involved the provision of operational and logistical support such as transportation, communication, and sustenance to staff of the OTP. She explained that she had no substantive role in the investigation or prosecution phase in the Kenya situation, which meant that she played no part in the investigation or gathering of evidence, and had no access to evidential material.
“The plenary of judges considers it entirely evident that such limited logistical interactions could not have lead Judge Samba to have formed an opinion on the case nor to have otherwise undermined her impartiality in the eyes of a reasonable observer,” they said, adding that the court’s legal framework does not require a judge to have never had any previous interaction with a potential witness.
The judges also found that the application lacks legal merit. They said they had assessed a previous decision involving Judge Silvia Fernández de Gurmendi, who had previously performed the function of Special Adviser to the former Prosecutor and head of the Jurisdiction, Complementarity and Cooperation Division in the OTP. The plenary had not precluded the judge from participating in sentence review functions after it was noted that her functions at the OTP had been strategic, high-level, and removed from the details of the case in question. They said the prior functions performed by Judge Samba involved an even lesser degree of involvement in any substantive aspect of the case or situation, as the judge had no involvement, control, or influence over the OTP’s investigation in the Kenya situation.
They found Gicheru’s application “readily distinguishable” from another case in which the ICC Presidency had excused Judge Fernández de Gurmendi from appeals in the Bemba case because of her previous involvement in the situation in the Central African Republic. The reasoning in that decision was based on the fact that the judge had a leading and high-level role in the preliminary examination, which the judges thought could not be compared to the “minimal logistical role” played by Judge Samba in the present case.
The plenary ruled that the application had failed to demonstrate any breach of the established standard of impartiality because the information Gicheru presented did not support “a claim of either actual bias or the existence of a reasonable apprehension of bias in the eyes of a well-informed objective observer”.
The judges did not consider any of the further grounds in the application, which were unrelated to the functions performed by Judge Samba, as having merit. They said the third ground, which suggests that Judge Samba has failed to provide information to dispel the appearance of bias, appears to inappropriately attempt to reverse the burden of proof by suggesting that the onus is on the judge and the OTP to demonstrate that she is not biased, “rather than acknowledging that the obligation to displace the presumption of judicial impartiality falls on the party bringing the allegation”.
They said the fourth ground, which insinuates that Judge Samba should have pre-emptively recused herself even if she did not consider it necessary, fails to take into consideration the court’s legal framework, which does not require a judge who deems that there is no reason to doubt her or his impartiality to do so.
The fifth ground suggests that because Judge Samba is the sole judge in the case, the fear of bias is high, and also raises concerns about the lack of availability of interlocutory appeals. They said the argument “… appears to fail to consider that even if it were accepted that partiality in one member of a panel of judges does not necessarily impact on the integrity of a decision of the panel as a whole, it does not follow that a different standard of impartiality applies to judges sitting alone or in panels”.
They added that the obligation to act impartially applies equally to all judges of the court, regardless of the size of the chamber in which a judge serves.
Gicheru is facing charges of interfering with witnesses the ICC prosecution had lined up against Kenyan Deputy President William Ruto and radio journalist Joshua Sang for crimes against humanity arising from the 2007/2008 post-election violence. His trial is set to open on February 15, 2022.
