April 22, 2019

ASP Decision on Rule 68 Blow to ICC Cases


By Calvin Osiemo

The Assembly of State Parties (ASP) on Friday upheld Kenya’s request to disallow the use of recanted evidence in the cases against Kenya’s Deputy President William Ruto and radio journalist Joshua Arap Sang at the International Criminal Court (ICC). The decision was arrived at as the meeting came to a close following Kenya petition presented to the assembly by a delegation led by Foreign Affairs Cabinet Secretary Amina Mohammed. However, the petition was opposed by the ICC saying it would interfere with the Kenyan cases currently underway at the court. The court had asked the ASP not to discuss the Kenyan agenda at the meeting.

The recanted evidence was received as testimony from witnesses who were later dropped from the case with some revealing that they were paid and coached to provide false evidence against the two suspects. The withdrawn testimonies hugely crippled the prosecution’s case and led to some Kenyan leaders asking the judges to drop the charges against DP Ruto and Sang. Despite the announcement by the ASP not being included in its resolutions, it affirmed that the rule on the use of recanted evidence would not be used retroactively.

‘‘ASP reaffirms its understanding that the amended Rule 68 shall not be applied retroactively,” reads in part a statement.

Foreign Affairs CS Amina Mohammed was happy with the decision arrived at by ASP and said she hopes ICC will abide by the resolution.

“We hope the ICC shall respect the powers of the Assembly as an equal governance institution. ASP must address the crisis brewing within the Rome Statute system. The crisis is occasioned by perceptions of inequality among nations and biased prosecutions,” Ms. Mohamed said.

Rule 68 was enacted in 2013 and the resolution then was that it would not be applied to the Kenyan cases. However, the judges in 2015 allowed the prosecution to use testimonies from “hostile” witnesses who had withdrawn from the cases, a move that did no auger well with the defence. Now the fate of DP Ruto and his co-accused Joshua Arap Sang lies in the hands of the Judges who will determine whether they will go on with implementing Rule 68 or not. The Kenyan delegation termed the decision by ASP as a victory to their spirited effort to ensure that Rule 68 is not applied.

“Kenya’s interpretation of Rule 68 has prevailed and therefore any use of recanted evidence cannot and must not be acceptable or applied at the ICC,” they said.

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