Kenya wins as ASP adopts text on ICC recanted evidence

November 27, 2015 5:11 am
Foreign Secretary Amina Mohammed and MP Adan Duale in The Hague.
Foreign Secretary Amina Mohammed and MP Adan Duale in The Hague.

, NAIROBI, Kenya, Nov 27 – The Kenyan delegation in The Hague has registered a major victory after the Assembly of States Parties adopted a report reaffirming that recanted testimony against Deputy President William Ruto and Joshua Arap Sang will not be used.

The resolution was adopted following intense lobbying by the Kenyan team which had earlier threatened to leave the conference.

“Following the debate on the supplementary items “Review of the Application and implementation of Amendments to the Rules of Procedure and Evidence introduced at the 12th Assembly,” the Assembly recalled its resolution ICC-ASP/12/Res.7 dated 27th November 2013 which amended rule 68 of the Rules of Procedure and Evidence, which entered into force on the above date and consistent with the Rome Statute reaffirmed its understanding that the amended rule 68 shall not be applied retroactively,” the resolution stated in part.

Foreign Affairs Cabinet Secretary Amina Mohammed however, said there was a lot of mistrust amongst States Parties which makes it difficult to pursue a common agenda.

“There are those who feared that this ASP was being urged by Kenya to overreach its mandate. Kenya and Africa believe that rather than institutional isolation propounded by some delegations, this ASP has demonstrated that what is needed to effectuate this system, is institutional collaboration,” she stated.

“We are therefore confident that a court wedded to this understanding shall respect the powers of the Assembly as an equal governance institution based on the principle of separation of powers and in deference to judicial independence,” she said.

She indicated that while serious doubts have been cast on the credibility of the commitments of this Assembly, it has become quite clear that Kenya and Africa continues to hold the Rome Statute framework as a critical bastion of justice.

“Good faith, cooperation, and mutual respect have today triumphed over cynicism and bias. Our faith in the Rome Statute system which had been jolted can however, only be reinforced if this negotiation’s outcomes receives judicial imprimatur in Court,” she stated.

She pointed out that Kenya had initially proposed for adoption by the Assembly comprehensive language, which more completely captured the consensus from two years ago.

“It is imperative to note that not one State Party has contradicted our position that two years ago, the agreement was that the amendment would not be applied to the Kenyan Situation,” she said.

She stated that the proposals were couched in specific text which has been modified to accommodate the views and concerns of other delegations.

“In exercise of the legislative powers of the ASP in article 112 of the Rome Statute, this 14th Assembly after painstaking negotiation, has provided unambiguous clarity to the temporal scope of the application of rule 68, and that it does not apply retroactively to the cases that had commenced before November 2013, including all those in the Kenyan Situation who were under investigation or prosecution at that time,” the Foreign Affairs CS stated.

While welcoming the ASP’s approval, Senate Majority Leader Kithure Kindiki said the new resolution will have a huge impact on the Kenyan cases at the ICC.

“We have also had the support of other countries outside Africa from the Caribbean, Europe to other parts of the world. We also want to say that although we know that a number of people and organizations did not support us, that now is behind us. It does not matter anymore,”

National Assembly Majority Leader Aden Duale was equally elated at the win registered by Kenya and what it means for Ruto and Sang.

“Kenya’s interpretation of Rule 68 has prevailed and therefore any use of recanted evidence cannot and must not be acceptable at the International Criminal Court. Now that the ASP has confirmed that Rule 68 cannot be applied retroactively, it means that it cannot be applied to the Kenyan cases,” Duale stated.

The deadlock, which lasted hours, delayed the conclusion of the ASP meeting and tension was high as Kenyans waited on the final decision of the ASP Bureau to see if the bid by the Government to secure a resolution favourable to Ruto and Sang was successful or not.

Kenya argued that the additional text left room for the judges to exercise their discretion, opening the possibility of prejudicing the fairness of trials against Ruto and Sang.

Several informal sessions during the ASP that Kenyan representatives exploited to lobby their cause appeared to have borne no fruit, neither were the painstaking negotiations in the ASP Bureau that was handling the requests by Kenyan officials.

Kenya sought that the use of the recanted evidence not to be applied retroactively in the cases facing Ruto and Sang.

ICC Chief Prosecutor Fatou Bensouda was allowed by ICC trial judges to use prior statements of five witnesses who recanted their evidence in the past, a move that has been strongly opposed by Ruto and Sang as well as the government as a miscarriage of justice.


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