Kenya files protest to ASP over rule affecting Ruto case

Kenya’s mission to the United Nations has sent a protest letter to the Assembly of State Parties (ASP) President, over application of Rule 68 in the case against Deputy President William Ruto

In a letter addressed to ASP President Sidiki Kaba and ICC President Judge Silvia Alejandra Fernández de Gurmendi, Kenya’s mission to the UN complained that the decision of the trial chamber is contrary to the agreement made during the ASP 12th session held in 2013.

“However, with the greatest respect to the court, we wonder why the court would take this course of action when it is surely aware of the understanding and decisions of the Assembly. The legal and moral hazard of such action(s) ought to be self-evident as it undermines the legislative oversight of the Assembly,” it stated.

The mission argued that state parties were told that the amendment to Rule 68 which allows use of prior recorded statement would not be applied on ongoing cases.

In its view, allowing use of prior statements of the five witnesses who recanted their evidence in the case against Deputy President Ruto and journalist Joshua arap Sang infringes on their rights.

“We are of the considered view that the current interpretation and implementation of this rule will do little to achieve this noble intention. Further, we are of the view that the current implementation of the rule infringes on the rights of the accused as provided for in Article 67 of the Statute.”

Kenya asked the ASP and ICC Presidents to review the interpretation of the amendment to Rule 68 and also consider the agreement that it would not be applied retrospectively.

In its view, Rule 68 should not be applied in the case against DP Ruto and Sang.

“Kenya respectfully but urgently requests the President of the Assembly, to take all necessary steps to ensure that the sanctity of consensus and decisions of the Assembly are respected by all,” the mission said complaining that it was not the first time it had raised similar concerns.

It said it had written to the ASP in February and May this year to raise the concerns but did not receive any response as expected.

In its view, Kenya was disgruntled by the manner in which the court and the Office of the Prosecutor were acting in contradiction of the agreements reached at the ASP.

“The Permanent Mission of Kenya wishes to inform that as a concerned state party, Kenya states that, the position taken by both the court and the Office of the Prosecutor is therefore most regrettable and in our assessment, improper.”

It expressed concerns that allowing application of Rule 68 on the Kenyan case would complicate and elongate the case.

DP Ruto and Sang have both asked for leave to appeal the decision which allowed the prosecution to use prior recorded statements of five witnesses who recanted at the trial stage.

They complained that allowing the five statements to go without cross examination is a violation of the rights of the accused.

Attorney General Githu Muigai and Korir Sing’Oei, Legal Advisor, Executive Office of the Deputy President raised similar concerns as those raised by the mission.

They said Kenya was convinced to support the amendment which they were promised it would not be applied retrospectively.

However, Harvard University law professor Alex Whiting argued that being applied retrospectively did not mean that it could not be applied on an ongoing case.

He said if that is what the ASP meant it could have clearly stated so when it made the amendment on Rule 68 of the ICC Rules of Procedure and Evidence.

Whiting however, said there was no guarantee that the judges would give a lot of weight to the recorded statements or rely on them when making the final judgment in the case against DP Ruto and Sang.