According to him, the ruling was in contradiction of treaties in relation to application of amendments to rules and procedures that control them.
He argued that the ASP resolution contained an express waiver of the rule from ongoing proceedings with or without a promise.
“The treaty is clear about the non retro-activeness of any amended rules. No one – even without any undertakings to Kenya or to state parties the treaty itself prohibits the retro-activity of any rule amended during its pendency.”
Korir Sing’Oei who is Legal Advisor, Executive Office of the Deputy President and who was part of the delegation that represented Kenya during the 12th session of the ASP was dismayed that last week’s ruling undermined the good faith on which treaties are anchored on.
“It’s in breach of trust. Treaties are based on good faith and this cannot be wished away. What the court has done is really to abuse our good faith,” he said.
“When we were negotiating we were given full assurance that this will not apply on Kenyan cases.”
In his view, the Trial Chamber’s decision was ‘a slap on the face’ of Kenya but also a setback in honouring and respecting principles that other treaties are anchored on.
During the 25th Africa Union Summit held in Johannesburg, South Africa in June this year, President Uhuru Kenyatta termed the prosecution’s application seeking for the application of Rule 68 as a violation of the understanding reached at the ASP.
“It is a very unfortunate ruling. It was not an assurance made to Kenya alone but to Africa. Africa through AU spoke about Rule 68 in July sessions in SA. It cautioned the court against applying Rule 68. What we have seen from the court is a direct attack to the entire continent of Africa,” Sing’Oei argued.
Bensouda in her application argued that six of the witnesses who had recanted or withdrawn had been corrupted by persons acting on behalf of the accused persons.
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