Trial Chamber V(a) also directed the Registry of the Court to request the Kenyan government to not only serve the subpoenas but to enforce them through threat of sanction if necessary.
“The Chamber found that the Government of Kenya has an obligation to cooperate fully with the court by serving the subpoenas to the witnesses and by assisting in compelling their attendance before the Chamber, by the use of compulsory measures as necessary,” a communiqué from the court read.
The Chamber said it granted the prosecution’s request for subpoenas after finding that, contrary to the defences’ assertions, it had the power to compel witnesses to appear before it.
“The Rome Statute State Parties did not intend to create an ICC that is ‘in terms a substance, in truth a phantom’. Rather, they must be presumed to have created a court with every necessary competence, power, ability and capability to exercise its functions and fulfil its mandate in an effective way. These include the power to subpoena witnesses,” the communiqué stated.
The Chamber composed of Presiding Judge Chile Eboe-Osuji, Olga Herrera and Robert Fremr by majority therefore requested that the Kenyan government fulfil its obligations, as set out in the Rome Statute, by:
“Compelling and ensuring the eight witnesses’ appearance before the Chamber by video-link or before the Chamber convened on the territory of Kenya,” the communiqué continued to state.
In February Attorney General Githu Muigai told the court that even if it did issue subpoenas, the Kenyan government would not be compelled to enforce them.
“These persons reserve the right to voluntarily comply with the summons or refuse to do so,” he submitted.
ICC Prosecutor Fatou Bensouda had requested the Chamber to issue the subpoenas after initially seven of her witnesses refused to testify.
Ruto and Sang’s defence had also argued that the ICC had no power to do subpoena witnesses and that the Prosecutor was trying to deflect blame for the shoddy investigations carried out by her office by blaming the collapse of her case on the refusal of witnesses to testify.
“There’s no penalty; there’s no power of arrest, even on these inviolable premises within ICC security. If such a witness was strong-armed, that would be an assault,” Karim Khan, defence counsel for Ruto argued.