, NAIROBI, Kenya, Feb 12 – Attorney General Githu Muigai has told the International Criminal Court (ICC) that the Kenyan Government cannot compel prosecution witnesses in the case facing Deputy President William Ruto to testify.
In a 15-page submission, Muigai explained that the International Crimes Act under which the Rome Statute applies in Kenya, only requires the government to serve summonses but not to enforce them.
“These persons reserve the right to voluntarily comply with the summons or refuse to do so,” Muigai submitted.
He also argued that the Rome Statute itself did not spell out consequences for failing to honour summons and interpreted it to mean that witness testimony should be given voluntarily.
“It is doubtful whether the founders of the Statute really intended Article 64(6)(b) of the Statute to be a mandatory provision setting out authoritative orders,” he stated.
He observed that the statute did not specify repercussions for countries that failed to enforce the summonses either.
Article 64(6)(b) of the Statute states: “In performing its functions prior to trial or during the course of trial, the Trial Chamber may, as necessary require the attendance and testimony of witnesses and production of documents and other evidence by obtaining, if necessary, the assistance of States as provided in this Statute.”
The ICC prosecution’s interpretation of which Muigai took issue with in his submission to the Judge Chile Eboe-Osuji led Trial Chamber: “It appears that in its analysis, the Prosecution equates ‘require’ with ‘order’. The two words are not synonymous and the Prosecution purports to ascribe a meaning to the term ‘require’ that is different from its ordinary meaning.”
He also took issue with the Prosecution’s interpretation of Kenyan law, which it had stated, allowed for compelling of witnesses to testify before a court.
“Respect for Kenya’s sovereignty and independence of her Judiciary requires that the Prosecution request an interpretation by Kenyan courts of her national law,” Muigai put to the court.
Trial Chamber V(a) will hear oral submissions on the Prosecution’s summonses request on Friday before issuing its ruling but Ruto’s lead counsel Karim Khan has already expressed his reservations to the request.