Kenya has lost its bid to have recanted evidence in the International Criminal Case against Deputy President William Ruto dropped after the Assembly of State Parties left the decision in the hands of the court’s Appeals Chamber.
Deputy President William Ruto and journalist Joshua Sang have appealed against a decision by the Trial Chamber to allow use of recanted evidence retrospectively in their case in line with the Assembly of State Parties’ resolution in 2013 that such evidence can be admitted where it was ascertained that witnesses were interfered with.
The ASP late Thursday passed an omnibus resolution “after lengthy diplomatic negotiations” but only after withdrawing two paragraphs that had been proposed by Kenya to amend Rule 68, which allows the use of recanted evidence, to the effect that the clause cannot be applied to the ongoing cases.
Most members of the ASP had decided that they should not be seen to be interfering with the independence of the court.
The Kenyan delegation led by Foreign Affairs Cabinet Secretary Amina Mohammed had hinted at Kenya withdrawing from the Rome Statute if the state parties did not stop the ICC from applying Rule 68 retroactively.
READ: Kenya steps up war to suspend ICC ‘Rule 68’
Elizabeth Evenson, a senior international justice counsel at Human Rights Watch who attended the discussions told The EastAfrican that the Appeals Chamber will need to address whether the trial chamber’s application of the rule was consistent with the Rome Statute as held by the lower court.
“The issue is not about who won or who lost at the ASP, but a thirst for justice for the victims of post-election violence in Kenya and everywhere in the world. During the discussions on Kenya’s requests, there were strong statements from a number of states regarding the importance of protecting the court’s independence,” said Ms Evenson.
Kenya’s two proposals, to stop the ICC from applying Rule 68 on recanted evidence and scrutinise how office of the prosecutor procured witnesses, collapsed at the ASP plenary when only Uganda supported the Kenyan cause while other countries opposed or remained silent.
Initially, the European Union had sought to dilute Kenya’s agenda, with most of the members arguing that Kenya’s proposals were an intrusion to the independence of the ICC by substantively discussing an ongoing case.
Canada, for instance, maintained that it is not the role of the ASP to serve as an appeal body for the ICC and that the prosecutor must be free of political interference, even from the ASP.
George Kegoro, executive director of the International Commission of Jurists-Kenya Chapter, told The EastAfrican that the lobbying by the Kenyan delegation failed because the country adopted a more confrontational approach rather than persuasion.
Now, focus is whether Kenya will make good of her threat to withdraw from the Rome Statute. Ruling Jubilee MPs led by the majority leader Aden Duale, threatened the assembly that failure to vote in favour would see Kenya lead other African signatories to the Rome Statute to withdraw from the Rome Statute en masse.
So far, only Namibia has given strong intention of withdrawing from the Rome Statute after the Cabinet approved the recommendation by the ruling party — South West Africa People’s Organisation (Swapo) to withdraw from ICC.
South Africa’s ruling ANC has also recommended that the country withdraws from ICC after the country faced intentional criticism for failing to arrest Sudanese President Omar al-Bashir in June during the African Union Heads of State Summit.