, NAIROBI, Kenya, Oct 8 – The African Union Commission has now joined objections to use of the amended Rule 68 of the Rules of Procedure and Evidence (RPE) in the case against Deputy President William Ruto and journalist Joshua arap Sang.
Charles Jalloh on behalf of the commission, asked the court to allow the AU to submit independent views as a friend of the court in regards to the trial chamber ruling in which the prosecution was allowed to use prior evidence of five recanting witnesses.
“The AU respectfully requests that this honourable chamber grant it leave, pursuant to Rule 103(1) of the RPE, to file written observations as formulated by the Majority Trial Chamber decision specifically whether the amended Rule 68 of the Rules can be applied in this case without offending Articles 24(2) and 51(4) of the Statute,” Jalloh stated.
Article 24(2) states that “in the event of a change in the law applicable to a given case prior to a final judgment, the law more favourable to the person being investigated, prosecuted or convicted shall apply.”
Article 51(4) explains the retrospectivity of applying amended rules: “Amendments to the RPE as well as provisional rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted.”
Defence teams of Ruto and Sang have already filed an appeal challenging the decision of the trial chamber.
Attorney General Githu Muigai also made an application asking the court to allow him to submit views on behalf of the Government of Kenya on application of Rule 68.
READ: Witness rule can’t be used in Ruto Hague case – AG
The Trial Chamber recently allowed ICC Prosecutor Fatou Bensouda and the defence teams to give their submissions regarding Muigai’s prayer as amicus curiae.
Whereas the defence wants the court to allow Muigai to submit his views, Bensouda has objected.
Rule 103(1) of the Statute allows any persons, organisations and all other states whether members or not to offer views to the court regarding matters before it.
It is on that basis that the AU and Muigai asked the court to allow them to submit observations on the appeal on application of Rule 68 “to assist in the proper determination of the case.”
“The AU therefore, has an interest and may be particularly well placed to provide observations that could assist in the Chamber’s determination of what the Presiding Judge of this appeal has conceded is a ‘novel and complex’ matter,” Jalloh stated.
In consideration that the amended Rule 68 was adopted during an ASP meeting, the AU argued that its interpretation should be anchored on the negations and agreements reached by the member states.
“A central issue in the present appeal is the interpretation to be given to Articles 24(2) and 51(4) of the Rome Statute in the context of the November 2013 rule amendments. The AU should be afforded the opportunity to proffer contextual information on the debate and resolutions of the November 2013 ASP pertaining Rule 68,” Jalloh asserted.
Muigai in his application argued that member states were urged to pass the amendment but were promised that it would not be applied retrospectively.
The prosecution in response has stated that it was “unaware of any undertakings made relating to the use of the amended rule in the Kenya case of in pending trials generally, save for what is included in the amendment adopted.”
According to Jalloh, 34 African member states were present during the 12th session of the ASP and were aware of the agreement and pledge made by ICC court officials.
In his view, such commitments by the court are binding and cannot be ignored.
“The prosecution seems to have given statements regarding assurances that were made during the negotiating process. These do not seem to comport with the recollections of African delegations present during the deliberations.”
“The International Court of Justice has consistently held that unilateral statements by competent officials may create international obligations to which the represented state is bound, both as a general matter and within a specific competency,” Jalloh argued.