Kenya was allowed to save face at the Assembly of States Parties after its diplomatic efforts to end the trial of Deputy President William Ruto at the International Criminal Court foundered.
After a week of unsuccessful lobbying, which degenerated into threats to withdraw from being a signatory to the Rome Statute — the treaty that creates the ICC, states reached consensus on 76 words to be included in the assembly’s report.
Kenya came to the 14th ASP seeking an assertion that the rule on the use recanted evidence would not be used to the detriment of the accused as well as a resolution to suspend the crimes against humanity case facing Ruto and journalist Joshua arap Sang while a committee of five jurists investigated how the prosecutor identified and recruited witnesses.
ICC Trial Chamber V admitted into evidence the recanted testimony of five hostile witnesses in the Ruto case in August under Rule 68 of the Rules of Evidence and Procedure of the Rome Statute. The decision sparked a flurry of political mobilisation meetings billed as prayer rallies as the defence filed an appeal. Although Kenya and Uganda’s applications to be enjoined in the case as friends of the court were turned down, the African Union was allowed to file a brief. Simultaneously, Kenya’s envoys mounted a diplomatic offensive to end the case.
During the UN General Assembly in New York in September, President Uhuru Kenyatta reached out to some signatories to the Rome Statute for support. Kenya’s ambassador to the UN, Macharia Kamau, dispatched three diplomatic notes to the ASP President asking that states debate how Rule 68 had been applied, and also forwarded a petition initiated by Pokot South MP David Pkosing and signed by 190 members of the National Assembly and the Senate seeking investigations into how the ICC Prosecutor identified and recruited witnesses for her case. The petition was introduced after Gatundu South MP Moses Kuria claimed that he had recruited and coached witnesses to frame Ruto.
The diplomatic onslaught mobilised the ICC President, prosecutor and registrar to write an unprecedented joint letter warning the assembly against interfering in the court’s work. Staff from the prosecutor’s office attended and took part in side events, alongside over 300 civil society activists lobbying against interference in ongoing cases.
“We are not seeking a new resolution,” Kenya’s Solicitor-General Njee Muturi had told the plenary as debate on Rule 68 began last week. “All we want is a reaffirmation that Rule 68 [on the use of recanted evidence] would not be used retroactively.”
Kenya had recruited South Africa, Uganda, Ghana and the African Union through Ethiopian Foreign minister Tedros Gebreyesus to speak in support of its quests. South Africa had a particular critical stake as it was also contesting the ICC’s demand for an explanation over its failure to arrest Sudanese President Omar el-Bashir when he attended an African Union summit in Johannesburg this year. South Africa’s request for a special committee to consider ways of extricating it from its quandary was approved. There was no voting since decisions at the Bureau are by consensus.
Gebreyesus set the tone of the diplomacy Kenya would be applying when he told the plenary, “We are here to speak with one voice on what we see is a clear campaign against Africa.” Although Ugandan attorney general Mike Chibita spoke in support of Kenya, saying some provisions of the Rome Statute had to suffer for the stability of African countries, his Botswana counterpart, Dr Athaliah Molomoke, strongly supported the independence of the ICC.
Foreign Affairs cabinet secretary Amina Mohamed and her Defence counterpart Raychelle Omamo led a posse of Kenya’s top diplomats posted in London, Paris, New York and Addis Ababa as well as lawyers in leaning on envoys to accede to Kenya’s demands. National Assembly majority leader Aden Duale and his Senate counterpart Kithure Kindiki led nearly 30 members of parliament in a support delegation, backed by consultants and its own set of non-governmental organisation representatives.
Civil society groups under the Kenyans for Peace with Truth and Justice coalition sent 12 representatives to the meeting. KPTJ’s Gladwell Otieno said said they were calling Kenya’s bluff about leaving the court: “We would rather have 32 committed members than 34 who are continuously threatening the integrity of the court. We know that the struggle for accountability at the local level will be a long one but we also know that the current regime will not be in power in perpetuity.”
A confrontation between the official Kenyan delegation and the civil society one , which had arrived in the hall wearing T-shirts with message on witnesses, played out in the plenary when Beninese Coalition for the International Criminal Court leader Francis Dako pointed out that Rule 68 was enacted to protect witnesses and cited the killing of members of the Mungiki militia before the termination of a similar case against President Uhuru Kenyatta.
Ms Mohamed angrily demanded that Mr Dako withdraw and apologise for mentioning the name of “a terrorist organisation” – in reference to Mungiki – “at a time when the world is grieving in the aftermath of the Paris attacks”.
ASP President Sidiki Kaba, his tone irritated but his words still conciliatory, referred the debate to the Bureau, the committee of 18 states that manages delicate negotiations.
“We’ve heard what everyone has had to say. The Bureau should meet at 9 am to hear from states who have heard back from their capitals,” he said. Although Mr Kaba was expected to leave for Senegal, where he still holds the position of Minister for Justice and Keeper of the Seals, last week, the stalemate in the ASP Bureau held him back until the end of the meeting. An unprecedented 60 states attended the first Bureau meeting, with most firm that Kenya’s proposals had not received support in the assembly.
Kenya began the debate with odds heavily tilted against it. Ambassadors and civil society leaders in turn spoke on the need to protect the independence of the court and of the prosecutor, but in informal consultations where no notes are taken and interpretation not provided, negotiations moved at a snail’s pace.
Kenya had arrived with threats to lead a mass withdrawal of African states from the ICC if it was not listened to. A Bill by Bumula MP Boniface Otsyula seeking to repeal the International Crimes Act, which domesticates the Rome Statute, had already been presented in the National Assembly for debate. A State Party can withdraw from the Rome Statute by sending a written notification to the UN Secretary-General but it would not have effect for at least one year, cases already started would have to continue. In the end, a compromise was reached to restate prior agreements on Rule 68 but there was no agreement on how to proceed with the prosecutor.
Had Kenya’s demands been acceded to, the trial of Ruto and Sang would have been suspended as a committee of five jurists investigated how the prosecutor identified and recruited witnesses. Three warrants of arrest have been issued for Walter Barasa, Paul Gicheru and Philip Bett for alleged witness interference.